February 8, 1982
A lawyer who learns that opposing counsel has knowingly perpetrated a fraud on a tribunal or legislative body must report the fraud to all appropriate authorities including the tribunal in question and the appropriate disciplinary body. Pending these two actions, the lawyer must not return any documents in question to opposing counsel.
References: Canon 1, 7, and 8; EC 8-5 and 8-7; DR 1-103(B)m 7-102(A), 7-102(B)(1); L.A. Co 22 (Opinion 21, Dec. 31, 1923).
A lawyer represent a client who was show caused for child support arrearages. At the hearing, opposing party testify that the client does not earn money. By accident or coincidence, you discover a note on yellow legal paper in your files several days later. You believe this note to be in the writing of opposing counsel. It reads as follows:
Works under the table.
Put her under oath that she
YHas not worked for money.
One of your conclusions is that the client intentionally lied and did so with the knowing approval of the lawyer.
At the onset, you should be caution to make such a conclusion. Perhaps the client is a licensed beautician yet earns no money. Is the record clear that the client testified under oath that in fact there is no professional license? Have you contacted licensing agencies to determine if the client is working for profit or do you have any other proof that the client makes wages? It is assumed, nonetheless, that by the phrase: "under the table," clearly the client is making money; it would escape common sense to conclude that the note meant anything else but nonetheless, this one caveat is compelled.
EC 8-5 states:
"Fraudulent, deceptive, or otherwise illegal conduct by a participant 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 the lawyer's obligation to preserve the confidences and secrets of the lawyer's client, a lawyer should reveal to appropriate authorities any knowledge of such improper conduct.
EC 8-7 affirmatively requires on lawyers almost a common-law duty to police our profession against fraud, deception and the type of chicanery of which you allege and of which appears true from the facts as you present them.
DR 1-103(B) states:
"A lawyer possession unprivileged knowledge or evidence concerning another lawyer . . . shall reveal fully such knowledge or evidence upon proper request of a tribunal or other authority empowered to investigate or act upon the conduct of lawyers or judges. DR 7-102(A)(4) is also applicable and states: "In his or her representation of a client, a lawyer shall not knowingly use perjured testimony or false evidence."
Dr 7-102 (B)(1) also established that a lawyer who knows his or her client is going to perpetrate a fraud promptly must reveal that to opposing litigants; in this situation, you and your client as well as the tribunal.
A lawyer should not be permitted to evade ethical responsibilities by remaining willfully ignorant when compelling clues and known facts call for further investigation. Charles W. Wolfram, Client Perjury, 50 S. Cal. L. Rev 809 843 (1977). See also Committee on Professional Ethics & Conduct v. Crary, 245 NW2d 298 (Iowa, 1976); Fabrication or Suppression of Evidence as ground of Disciplinary Action Against Attorney, 40 ALR3d 169 (1971); John T. Noonan, Jr., The purposes of advocacy and the Limits of Confidentiality, 64 Mich L. Rev. 1485 (1966); Former Canon of Ethics 15.
Clearly our Michigan Supreme Court has held that if a lawyer knowingly advances an unwarranted claim or defense, discipline is proper, State Bar v. Corace, 1485 Mich 419 (1973).
An interesting opinion extremely similar is as follows:
"A lawyer whose client gave certain documentation relevant to a marital action may not, upon discovery that the materials were fraudulently obtained and the initiated action itself is based on fraud, return the documents to the opposing parity at the latter's request. Under the circumstances, it is proper to have the documents canceled through legal action." Emphasis added.
Thus, with initial caveats in mind, you must:
- Inform the Tribunal (Judge) of the fraud;
- Notify the Attorney Grievance Commission of the action;
- Not return the document upon which the fraud is based to opposing counsel pending actions specified in 1 and 2.