April 20, 1994
A lawyer who learns that an authorization used by the lawyer to obtain the medical records of a witness was forged by the lawyer's client in an attempt to obtain the medical records to discredit the witness at retrial, may reveal confidences and secrets of the client to the extent necessary to rectify the consequences of the client's fraudulent act and to effectuate the lawyer's withdrawal from the case.
References: MRPC 1.2(c), 1.6(a) and (c); RI-151.
A client was tried and convicted of first degree murder; on appeal, the conviction was reversed. In preparation for eventual retrial, the client contacted appellate counsel and advised that a prosecution witness, whom the client claimed was a friend, had agreed to provide an affidavit authorizing release of the witness's medical records. Several months later, the client sent the purported affidavit to counsel, who forwarded it to the recordholder and requested the release of records. Counsel received the medical records and forwarded a copy to the client. Upon further review of the materials and concluding that the contents were extremely sensitive and would tend to discredit the testimony of the witness, counsel questioned the client regarding the authenticity of the affidavit authorizing the release of the records. The client admitted forging the affidavit. The client currently possesses a photocopy of the medical records, and has been appointed a different lawyer for retrial. Appellate counsel has filed a motion to withdraw, and asks what, if anything, may be disclosed to trial counsel and to prevent the client's future use of the fraudulently obtained medical records.
The client's confessions concerning the forged affidavit were clearly confidences as defined in MRPC 1.6(a) which states:
"(a) Confidence refers to information protected by the client-lawyer 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 the client."
A lawyer may not reveal confidences except in accord with MRPC 1.6(c) which states:
"(c) A lawyer may reveal:
"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
"(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
"(3) confidences or secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
"(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct." Emphasis added.
MRPC 1.6(c)(3) permits disclosure of confidences and secrets if necessary to rectify the consequences of "illegal or fraudulent acts" if the lawyer's services have been utilized "in the furtherance" of those acts. Forgery is an illegal or fraudulent act. By forwarding the forged affidavit to the holder of the medical records, the lawyer's services were used to further the illegal act of client. The provisions of MRPC 1.6(c)(3) apply, and the lawyer has discretion to divulge the client's fraudulent act.
A motion to withdraw has been filed by the lawyer. MRPC 1.16(b) states:
"(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
"(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
"(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
"(4) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
"(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
"(6) other good cause for withdrawal exists."
MRPC 1.6(c)(3) allows the lawyer to reveal confidences to support the lawyer's motion to withdraw. However, such disclosure to the court should be made in camera. See RI-151.
MRPC 1.2(c) states:
"(c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law."
The Comment to MRPC 1.2(c) states in part:
"When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the client's wrongdoing, except where permitted by Rule 1.6. However, the lawyer is required to avoid furthering the purpose, for example, by suggesting how it might be canceled. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is illegal or fraudulent. Withdrawal from the representation, therefore, may be required."
A lawyer has a duty pursuant to MRPC 1.2(c) to fully counsel a client regarding the legal consequences of the client's acts, including returning the copy of the medical records that were fraudulently obtained and advising that the lawyer has discretion to reveal the client's fraudulent act. If the lawyer is not satisfied that the return of the copy of the medical records will rectify the consequences of the client's fraudulent act, the lawyer has discretion to disclose confidences and secrets to the extent necessary to rectify. In this instance, "rectifying" may include disclosure of the incident to the lawyer appointed for the client's retrial.