The Florida Bar
OPINION 82-3An attorney who learns that his former client has committed a fraud upon a person or tribunal during the attorney's representation may reveal the fraud to the court only if the client's fraud is clearly established under the guidelines of DR 7-102(B).
May 20, 1982
May 20, 1982
CPR: DR 4-101, DR 7-102, EC 8-5
Chairman Ervin stated the opinion of the committee:
A Florida attorney inquires whether he has received information clearly establishing that his former client has committed a fraud upon a person or tribunal during the attorney's representation, so as to give rise to a duty of the attorney to take further action pursuant to DR 7-102(B), Florida Code of Professional Responsibility.
The attorney recites that during the course of his representation of two clients, he prepared for execution by one client, and by an employee-witness, affidavits reciting the facts and date of resignation of the client as a director and officer of a corporation. As a part of pending proceedings, the other client, a relative of first client, testified at deposition as to fact and date of resignation. The affidavits were submitted to the court during pretrial proceedings. The fact of resignation and time of same were of significant importance to the ongoing litigation.
The attorney has, with approval of the court, withdrawn from representation of the clients. He recites his present doubt as to the truthfulness of the prior affidavits and depositions based upon undescribed "credibility problems" he experienced with the clients prior to withdrawal, together with the fact that the client signed one written communication to the lawyer in a form indicating corporate officer status long after the purported date of resignation, and later fabricated and attempted to persuade the attorney to accept a backdated, substitute written communication not so indicating.
The attorney recites that his two former clients and the employee-witness have steadfastly maintained that the affidavits and depositions are true.
Since the information which has caused the attorney's doubt was secured from the client during the course of representation, DR 4-101 of the Florida Code must be first considered. That rule provides, in pertinent part, that:
DR 4-101 Preservation of Confidences and Secrets of a Client.
(A) "Confidence" refers to information protected by the attorneyclient privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
(B) Except when permitted under DR 4-101(C) and (D), a lawyer shall not knowingly:
(1) Reveal a confidence or secret of his client.
(C) A lawyer may reveal:
(2) Confidences or secrets when permitted under disciplinary rules.
(D) A lawyer shall reveal:
(1) Confidences or secrets when required by law provided that a lawyer required by a tribunal to make such a disclosure may first avail himself of all appellate remedies available to him.
(2) The intention of his client to commit a crime and the information necessary to prevent the crime.
The information possessed by the inquiring attorney was gained in the professional relationship and its disclosure would be embarrassing or detrimental to the client, so it is clearly a "secret," and may be a "confidence" as well, under the terms of DR 4-101(A). Under the terms of subsection (B), the information may not be disclosed by the attorney unless disclosure is authorized, or required, by one of the exceptions set forth in subsections (C) or (D).
Subsection (D) would appear inapplicable in that no law has been cited compelling an attorney to disclose past untruthfulness of his client; no tribunal seeks to compel disclosure; and an attorney is not required under subsection (2) to reveal a completed crime (i.e., perjury) by his client. It is noted that DR 4-101(D)(2) of the Florida Code is substantially broader than the corresponding American Bar Association provision in requiring an attorney to disclose his client's intention to commit any crime. The Florida provision is, however, prospective in operation and applies only to intended, but not yet committed, crimes of a client.
Subsection (C) of DR 4-101 requires further analysis. That provision authorizes an attorney to reveal confidences or secrets of a client "when permitted under disciplinary rules." This provision, in turn, makes pertinent DR 7-102(B) of the Florida Code, which provides:
DR 7-102 Representing a Client Within the Bounds of the Law.
(B) A lawyer who receives information clearly establishing that:
(1) His client has , in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal.
(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal.
The above-quoted provision was considered at length in prior Advisory Opinion 75-19 wherein it was noted that the corresponding provision of the American Bar Association Code had been amended to except from the duty of disclosure information protected as privileged communication.
Guided by the absence of such an exception in the Florida Code, in Advisory Opinion 75-19 this Committee expressed its opinion that an attorney, upon learning from his client that the client had deliberately lied at a deposition, was required to withdraw from the representation and to reveal the fraud to the court if the client refused to rectify the false testimony.
A contrary conclusion as to duty of disclosure is at least arguably suggested by EC 8-5 of the Florida Code, which provides as follows:
EC 8-5 Fraudulent, deceptive, or otherwise illegal conduct by a participant in a proceeding before a tribunal or legislative body is inconsistent with fair administration of justice, and it should never be participated in or condoned by lawyers. Unless constrained by his obligation to preserve the confidences and secrets of his client, a lawyer should reveal to appropriate authorities any knowledge he may have of such improper conduct.
The Committee is of the opinion, however, that there is no real conflict or inconsistency between DR 7-102(B) and EC 8-5. Where the circumstances required by DR 7-102(B) are present, the attorney is not constrained by an obligation to preserve the confidences or secrets of his client (as to the fraud) and disclosure must be made. This is, of course, consistent with the aspirational guideline of EC 8-5.
On the other hand, where the requirements of DR 7-102(B) are not met, then pursuant to DR 4-101(B), the attorney is so constrained and should not make disclosure. This circumstance is excepted from the aspirational guideline of EC 8-5. Properly viewed, EC 8-5 is merely reflective of the commands of DR 4-101(B) and exceptions recognized in that subsection.
The Committee, therefore, adheres to its prior Advisory Opinion 75-19, to the effect that under the circumstances described in DR 7-102(B) of the Florida Code, an attorney is required to disclose even confidences or secrets of his client. The Supreme Court of Florida, in adopting the Florida Code in its present form, has recognized and mandated this limited exception to the ordinary attorney-client relationship in order to preserve the integrity of the system of administration of justice.
The exception is, however, limited by its own terms. DR 7-102(B) requires disclosure only where the attorney:
... receives information clearly establishing that:
(1) his client has, in the course of the representation , perpetrated a fraud upon a person or tribunal....
Thus, the Supreme Court has commanded that the confidentiality of the attorney-client relationship will be sacrificed only where the client's fraud is clearly established to have occurred during the representation.
In prior Advisory Opinion 75-19 the client had expressly confirmed to the attorney that he (the client) knew the true facts and had deliberately lied under oath to conceal his assets. Thus, the attorney possessed more than adequate information "clearly establishing" the client's fraud on the tribunal during the lawyer's representation and disclosure was required.
No such definitive factual situation is presented in this inquiry, in that: (1) The inquiring attorney's former clients, and a third party, steadfastly maintain that the prior statements regarding corporate resignation were true; (2) the form of signature indicating to the contrary could conceivably have been simple mistake; (3) the attempt to substitute communications to the attorney could have been intended to correct a potentially embarrassing mistake rather than conceal evidence of perjury; and (4) the inquiry is based in part on undescribed "credibility problems" experienced between the clients and inquiring attorney during the representation.
Under such circumstances, this Committee is of the opinion that it can provide guidance only in the form of emphasizing that under DR 7-102(B) the test or standard is that the information possessed must "clearly establish" fraud on the tribunal. The Committee is not a fact-finding body, nor is it able to glean from limited correspondence, and then weigh, all the subjective factors and factual considerations which would enter into the determination of whether fraud is "clearly" established.
The responsibility for this factual determination must remain with the inquiring lawyer.
The foregoing is the opinion of a majority of the Professional Ethics Committee and is hereby adopted as the Committee's proposed advisory opinion. One member of the Committee would agree with the "clear establishment" test as set forth above, but would apply a continuing wrong principle if the subject litigation was not concluded. One member of the Committee is of the opinion that the facts as presented fall short of "clearly establishing" fraud on a tribunal, and that the Committee's opinion should proscribe disclosure.