Ethics Opinion

Opinion 75-19

FLORIDA BAR ETHICS OPINION
OPINION 75-19
March 15, 1977
Advisory ethics opinions are not binding.
An 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.
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. Subsequent to the issuance of this
ethics opinion and its affirmance by the Committee, the comment to Rule 4-3.3 was
amended in 2006 to state that the rule “applies when the lawyer is representing a client in
an ancillary proceeding conducted pursuant to the tribunal’s adjudicative authority, such
as a deposition.” The Supreme Court cited to the comment in The Florida Bar v. Dupee,
160 So.3d 838 (Fla. 2015), suspending a lawyer who failed to correct the false testimony of a
client at a deposition.
CPR:
Opinions:
Case:
Misc.:

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superseded by Rule 4-3.3]
ABA Formal 268, 274. 341; ABA Informal 1314, 1318
McKissick v. United States, 379 F.2d 754 (5th Cir. 1967)
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 “A 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 “A
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 “except when permitted under DR 4-101(C) and (D).” Under
4-101(C), “a lawyer may reveal . . . confidences or secrets when permitted under disciplinary
rules.”
EC 7-26 provides that “The law and disciplinary rules prohibit the use of fraudulent,
false, or perjured testimony or evidence,” and EC 7-6 states that a lawyer “may 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): “A 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: “The 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, “We 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): “except 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: “While 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.