CI-789
July 6, 1982
SYLLABUS
Where a lawyer believes that a criminal client is going to perpetrate a fraud on a person or tribunal, counsel must initially attempt to persuade the client not to perpetrate the fraud.
Where it is clearly established that t client shall refuse to rectify the fraud, the lawyer must then inform the criminal client that the lawyer must either withdraw from the case or the defendant must secure new counsel.
Where it is clearly established that the client will commit perjury and will not rectify the situation, the lawyer must advise the client that the lawyer shall have to report the activity to all affected entities, including the court the prosecuting authority.
Any lawyer must not knowingly use perjured testimony before any court or any other tribunal or adjudicative body and must take all steps to prevent a proposed fraud thereon.
Where there is any doubt that a client will commit fraud or perjury, or where there is any doubt that a client will correct the situation, the lawyer is obligated to preserve the confidences and secrets of the client, and thus the lawyer should not withdraw from the client's case, and should not make revelation to the affected entity, including the court and/or the prosecuting authority. However, once the client commits perjury the lawyer has a duty to disclose the wrongful act to the affected person or tribunal.
References: Canons 1,4,7; DR 1-102, 4-101(C)(1) and (2), 7-102(B)(1); CI-255, CI-515, CI-759; ABA Informal Opinion 1210.
TEXT
Basically, the fact situation you provide is that you are court appointed to represent a criminal defendant where the alleged crime occurred on a one-to-one basis with the victim. Your interviews with the defendant indicate that the defendant expects to win the case by deliberately committing perjury on the court. You have taken the step to notify the defendant that you cannot assist in committing perjury and that defendant would have to secure other appointed counsel unless the defendant rectifies the situation. The defendant responded that he/she was totally satisfied with your representation and was reluctant to ask for a different lawyer.
Turning to the authority, you are first directed to the requirements that a lawyer shall not knowingly divulge a confidence and secret of a client [DR 4-101(C)(1). However, such disclosure is permitted where allowed under DR 4-101(C)(2). DR 7-102(B)(1) states:
"B. A lawyer who receives information clearly establishing that:
"(1) A client has, in the course of the representation perpetuated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal. Emphasis added.
The real question is, however, is it clearly established that the defendant will commit fraud on the court and will not rectify the situation? See CI-759, CI-515, CI-255. Those opinions infer and/or state that if there is any doubt about the client's intent to deceive or refusal to rectify, non-disclosure is the proper course. DR 7-102(B)(1). At this stage of the proceedings, it appears that possibly the matter will not go to trial for one reason or another; e.g., a plea bargain, dismissal motions may be granted. Perhaps your client will agree not to commit fraud. For the time being, the lawyer should admonish the client that if the matter does go to trial, and the client does in fact perjure himself or herself or commit any kind of fraud, the lawyer is ethically obligated to report the criminal defendant.
Having reached that conclusion, you pose yet another question; to whom is disclosure mandated? See DR 7-102(B)(1), supra. Therein, it is indicated per se that you must inform "the affected person or the tribunal." The court must be informed but must the prosecutor as well? None of the cited opinions have clearly analyzed that precise question.
The problem is that the language is disjunctive yet the fraud is being created on both the prosecutor (a person) and the court (a tribunal). As more fully demonstrated, infra, whoever or whatever is affected by the fraud, each entity must be informed; thus a fair reading of the quoted language should be conjunctive in application. To resolve this conflict a subsequent question appears to support the above reasoning: To what extent must the lawyer divulge what otherwise is a secret and confidence of a client? ABA informal opinion 1210 states in part:
"There remain, of course, instances of criminal conduct not constituting frauds of the sort specified by DR 7-102(B). Manifestly a lawyer must be virtue of DR 1-102 comply with any laws relating to the compounding of a felony or serving as an accessory after the fact. Apart from these considerations there is a duty on the part of a lawyer as a good citizen to aid in the enforcement of criminal laws validly enacted for the collective protection of society to report unprivileged knowledge of other criminal conduct to appropriate authorities. In other words, the Code of Professional Responsibility through its Disciplinary Rules necessarily deals directly with reporting of lawyer misconduct of others directly observed in the legal practice or the administration of justice. It of course, was not intended to strip a lawyer of the other obligations imposed upon him as a member of society."
Thus, when a client states he or she is going to commit a fraud and shall not do anything to correct it, the lawyer must tell the client that such matter becomes unprivileged and therefore, this bit of information must be disclosed to the court and the prosecutor. To do otherwise theoretically and perhaps realistically places the lawyer in the unenviable role of becoming involved in an interlude of criminal activity as an accessory, perhaps a co-conspirator. No lawyer should ever permit himself or herself to become held hostage by the untoward motives of his or her client in violation of the law. The situation presented probably is one of the most common instances where such captivity is, at the very least, attempted.