FLORIDA BAR ETHICS OPINION
May 20, 1982
Advisory ethics opinions are not binding.
An 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).
Note: Current Rule Regulating The Florida Bar 4-3.3 addresses only fraud on the tribunal,
not fraud on a third party.
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The attorney has, with approval of the court, withdrawn from representation of the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 attorney-client
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
(B) Except when permitted under DR 4-101(C) and (D), a lawyer shall not
(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
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.