The Florida Bar
OPINION 75-19An attorney who learns from his client that the client deliberately lied at a deposition must withdraw from the representation and must reveal the fraud to the court if the client refuses to rectify it.
March 15, 1977
March 15, 1977
Note: This opinion was affirmed by the Professional Ethics Committee at its meeting on June 18, 1998. The Committee affirmed that a material misrepresentation during a deposition, regardless of whether the deposition has been filed with the court, requires that the attorney take remedial measures under Rule 4-3.3.
CPR: EC 7-6, EC 7-26; DR 4-101(B),(C) and (D), DR 7-102(B)(1) [DR 7-102(B)(1) superseded by Rule 4-3.3]
Opinions: ABA Formal 268, 274. 341; ABA Informal 1314, 1318
Case: McKissick v. United States , 379 F.2d 754 (5th Cir. 1967)
Misc.: Drinker, Legal Ethics , p. 141
Vice Chairman Lehan stated the opinion of the committee:
A lawyer inquires as to whether he has a duty to disclose perjury committed by his client in a divorce proceeding deposition wherein the client lied as to certain assets. The lawyer was aware of the true facts during the deposition but was not aware that the client had deliberately lied until after the deposition when the lawyer, in private conversation with the client, asked whether the client knew the true facts and the client responded that he did and that he had deliberately lied to conceal assets. In the inquiry, the lawyer recognizes his duty to withdraw from the employment, and the Committee unanimously agrees.
DR 7-102(B)(1) provides that AA lawyer who receives information clearly establishing that . . . 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. The majority of the Committee feels that a fraud has been perpetrated upon the court and the opposing party by such perjury in a deposition and that further fraud would be perpetrated by permitting use in litigation of a perjured deposition, such as the one referred to in the inquiry, or by later testimony in like fashion before the court if the deposition itself should not be used in evidence.
The inquiry is silent as to whether the lawyer, upon learning of the perjury, specifically called upon the client to rectify same. Certainly the lawyer has a duty to do so. For the purpose of this opinion the Committee finds implicit in the inquiry the facts that the lawyer did so call upon the client and that the client refused to rectify the perjury.
DR 7-102(B)(1) does not specifically refer to information received from the lawyer's client; however, neither does it purport to limit in any way the sources from which information of the type described may be received. Therefore the Committee majority feels that that provision of the CPR is inclusive of information from clients. By referring to the requirement that the lawyer call upon the client to rectify the fraud and, if the client refuses, the lawyer shall reveal the fraud to the court, the provision may contemplate implicitly that such revelation to the court will necessarily involve the client as a source of at least part of such information.
Under Canon 4, relating to confidences of a client, DR 4-101(D)(2) provides that AA lawyer shall reveal . . . the intention of his client to commit a crime and the information necessary to prevent the crime. Although under the circumstances indicated in the inquiry the perjury had already been committed when the lawyer ascertained positively that the client had deliberately lied, the inquiry would seem to involve either further use of the deposition, which would involve at least furtherance of the crime, or, if the client were to testify in court, information concerning the intention of the client to perjure himself before the court. Therefore, 4-101(D)(2) would appear applicable. See also McKissick v. United States , 379 F. 2d 754, 761 (5th Cir. 1967), saying that perjury is a continuing offense so long as allowed to remain in the record to influence the outcome.
Other provisions of Canon 4 are relevant. DR 4-101(B) provides that a lawyer shall not reveal confidences of his client Aexcept when permitted under DR 4-101(C) and (D). Under 4-101(C), Aa lawyer may reveal . . . confidences or secrets when permitted under disciplinary rules.
EC 7-26 provides that AThe law and disciplinary rules prohibit the use of fraudulent, false, or perjured testimony or evidence, and EC 7-6 states that a lawyer Amay not do anything furthering the creation or preservation of false evidence.
In short, the Committee majority feels that the attorney-client privilege is not to be preserved at all costs, or at the cost of the principles represented by DR 7-102(B); that the Code of Professional Responsibility has specific application to the present inquiry; and that the attorney must disclose the fraud to the court. It may be that in most such situations the lawyer's action in calling upon the client to rectify the fraud would dispose of the problem so that the lawyer need not himself make disclosure to the court.
In McKissick v. United States , 379 F. 2d 754, 761, 762 (5th Cir. 1967), which involved a lawyer's report to the court of a client's admission to the lawyer of perjury, the Fifth Circuit took the strong position that the lawyer fulfilled his duty in so reporting to the court and that if he had not done so, he would have been subject to discipline. In a footnote the Fifth Circuit said:
Drinker, Legal Ethics 141 (1953): AA lawyer learning of fraud practiced by his client on a court * * * which the client declines to disclose must inform the injured parties, and withdraw from the case, despite Canon 37 [of the Canons of Professional Ethics of the American Bar Association, this Canon covering the lawyer's duty to preserve his client's confidence]. See also Canon 29 which provides in part: AThe counsel upon the trial of cause in which perjury has been committed owe it to the profession and to the public to bring the matter to the knowledge of the prosecuting authorities. We feel this duty may be equally discharged by disclosure to the court itself. Disciplinary measures have been successfully taken against attorneys who have continued with a civil case knowing that their clients had presented perjured testimony . . . In re King , 7 Utah 2d 258, 322 P. 2d 1095 (1958) the court commented, AWe cannot permit a member of the bar to exonerate himself from failure to disclose known perjury by a * * * statement * * * he had a duty of nondisclosure so as to protect his client which is paramount to his duty to disclose the same to the court, of which he is an officer, and to which he in fact, owes a primary duty under circumstances such as are evidenced in this case. 322 P. 2d at 1097. But compare Gold, Split Loyalty: An Ethical Problem for the Criminal Defense Lawyer, 14 Clev.-Mar. L. Rev. 65, 69-70(1965).
379 F. 2d at p. 761, N.2.
This Committee opinion has reference only to such crime and type of fraud committed by the client in the course of the lawyer's representation of the client.
The Committee recognizes that the current ABA version of the Code of Professional Responsibility includes amendment of DR 7-102(B) to specifically provide for the conflict under these circumstances between a lawyer's duty to the court and his duty to his client. That ABA version differs from the Florida CPR in having, by such amendment, added the following proviso to DR 7-102(B): Aexcept when the information is protected as privileged communication. See ABA Formal Opinion 341 and ABA Informal Opinions 1314 and 1318. Whether the Florida Code of Professional Responsibility should also be so amended would be a matter for the consideration of the Supreme Court of Florida.
Two members of the Committee feel that disclosure of some type by the lawyer is necessary but that the lawyer should simply advise the Court that use of the deposition in favor of the client would, for reasons which the lawyer cannot disclose, constitute a fraud upon the court.
A substantial minority of the Committee feels that the protection of the confidences of a client is of paramount importance; that Canon 4 specifically concerns protection of confidential information received from a client whereas Canon 7 does not specifically relate to information from the client; that under the inquiry the perjury had already been committed, therefore DR 4-101(D)(2) does not apply; and that the attorney should resign from the employment and take no further action. See ABA Formal Opinion 268 and ABA Formal Opinion 274, both written under the Canons of Professional Ethics. Opinion 268 states: AWhile ordinarily it is the duty of a lawyer, as an officer of the court, to disclose to the court any fraud that he believes is being practiced on the court, this duty does not transcend that to preserve the client's confidences. Also, the Committee minority feels that the exception added to the ABA version of DR 7-102(B) should be found implicit in Florida DR 7-102(B) and that, in any event, the Florida Supreme Court should be asked to so amend the Florida Code of Professional Responsibility for the reasons stated in ABA Formal Opinion 341.