CI-793
July 16, 1982
SYLLABUS
If a prosecuting attorney in the course of representation of a complainant under terms of the Family Support Act or the Paternity Act, discovers evidence clearly establishing that the complainant has perpetrated a fraud upon a person or tribunal during the course of the prosecuting attorney's representation, the prosecuting attorney must request the complainant to rectify the fraud, and if the complainant refuses, or is unable to do so, the prosecuting attorney must report the fraud to the affected person or tribunal.
If during the representation, the prosecuting attorney discovers that the complainant perpetrated a fraud on a person or tribunal prior to undertaking the present representation of the client, the prosecuting attorney should call upon the client to rectify the wrong, however, the prosecuting attorney is not obligated to reveal the past fraud of the client unless, the current representation of the client requires the prosecuting attorney to in someway rely upon or support the client's previous fraudulent conduct.
This opinion is not limited to prosecuting attorneys representing claimants in actions under the Family Support Act or the Paternity Act, but applies equally to attorney representation of a client.
References: DR 7-102(B)(2).
TEXT
A lawyer is occasionally confronted with an ethical problem as prosecuting attorney in the context of the lawyer's statutorily mandated role as attorney for certain complainants in actions under The Family Support Act, MCL 552.451 et seq., and The Paternity Act, MCL 722.711 et seq. The clients in such cases have been referred by the Aid to Dependent Children funds (ADC). Specifically, the ethical question raised is whether the prosecutor is obligated to reveal information received, or circumstances discovered, during such representation which indicates that the party being represented (or one with whom they act in concert) is receiving ADC benefits under continuing fraudulent conditions, most often unreported income.
In general the Michigan Code of Professional Responsibility requires a lawyer to preserve the confidences and secrets of a client (Canon 4). They may however, be revealed when permitted by Disciplinary Rules or required by law or court order. DR 4-101(C)(2). Under DR 7-102(B):
"A lawyer who receives information clearly establishing that:
"(1) The client has, in the course of the representation, perpetrated 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.
"(2) A person other than the client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal."
As used in the Disciplinary Rules of the Code of Professional Responsibility, "person" includes "any other organization or legal entity," and "tribunal" includes "all courts and other adjudicator bodies." The DSS would clearly be included within the definition of "person" as so established; and recently, this Committee has specifically held that the DSS is included within the definition of the term "tribunal." CI-759.
The provisions of DR 7-102(B) are specific. Note that the obligation to reveal the fraud does not arise until the attorney receives information "clearly establishing" fraud. Furthermore, DR 7-102(B)(1) specifies that the fraud, if that of a client, whether upon a person or tribunal, must have occurred "in the course of the representation." Fraud of a non-client upon a tribunal must be revealed promptly regardless of when it occurred, provided disclosure will not violate any ethical responsibility of the lawyer to a client. DR 7-1029B)(2). If the person committing the fraud is the complainant or petitioner, the lawyer should follow the requirements of DR 1-102(B)(1).
Note should be made that the Code does not seem to cover the circumstance where a lawyer discovers that the client perpetrated a fraud on a tribunal in the past, but has subsequently abandoned that conduct. If the lawyer were to become aware of such a situation, and if in the present representation of the client the lawyer were in the position of having to rely upon, and therefore support such a fraud, the lawyer may not do so, and the lawyer should follow the mandate of DR 7-102(B)(1). If the fraud on a tribunal that the lawyer discovered is not material to the present representation of the client, the lawyer should, at a minimum, call upon the client to rectify it. The lawyer is not obligated to reveal the fraud in this circumstance.
Pursuant to DR 4-101(C)(3), if a lawyer have possession of facts that indicate beyond a reasonable doubt the intention of the client to commit a crime, it may be revealed along with the information necessary to prevent the crime. CI-759. The American Bar Association has interpreted the word "fraud" to mean "active fraud," requiring scienter or the intent to deceive. ABA Formal Opinion 341. More than mere suspicion is required, however, and if the lawyer has legitimate doubts about the nature of the client's conduct, the lawyer must resolve such doubt in favor of the client and against disclosure.
You have requested the Committee's opinion as to your responsibilities once you have revealed any fraud, should you determine that you must, and should the support or paternity action warrant continuation even after the fraud is revealed. However, a comment in that regard seems appropriate, not only because you have acknowledged the inevitable conflict of interest arising in such circumstances, but also because the statutory scheme created to establish paternity and support appears to allow for such event.
Under the Family Support Act, the prosecuting attorney's representation of the DSS or a party eligible for public assistance is mandatory. MCL 552.454. Under the Paternity Act, such representation is permissive, and as an alternative to representation by the prosecuting attorney (MCL 722.174) the statute authorizes employment of a lawyer by the county pursuant to MCL 49.71 et seq. That statute, for example, *** county employs corporation counsel to represent the county in certain civil matters otherwise delegated to the prosecuting attorney, by its terms limits such representation to the county; however, the provisions of the Paternity Act appear to extend its scope. MCL 722.714(C). Refer also to MCL 722.3 that permits employment of a lawyer by the County Board of Commissioners to replace the prosecuting attorney under certain circumstances to enforce a support obligation when a minor is being supported in whole or in part by public assistance under the provisions of MCL 400.1 et seq. Under all three acts cited related to collection of support monies, provision is made for alternative plaintiffs including not only the parent, but also certain relatives, legal guardians, and the DSS.
The other questions asked relating to dismissal of certain paternity actions, appointment of guardians ad litem, and reinstitution of paternity actions after voluntary dismissal appear to be legal issues rater than ethical. This Committee has no jurisdiction to address legal issues.