"
MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-46
Confidence and Secrets: Disclosure of False Statements Made By Client During Deposition
You currently represent a young adult in a personal injury action which occurred during his minority. During a deposition your client lied about a fact relevant to the liability aspect of his case. You did not know he had lied until he told you after the deposition was completed. He stated was anxious and thought the response would increase his chances of winning, although the response actually is harmful to him on the issue of liability. Your question to the Committee is whether you must now withdraw from this representation now that you are aware of the ""fraud"" committed by your client.
The Committee looked primarily to the Maryland Rules of Professional Conduct that became effective January 1, 1987. There was much animated discussion which pointed up the dynamic balancing act between the rule dealing with Confidentiality of Information (Rule 1.6) and the rule dealing with Candor Toward the Tribunal (Rule 3.3).
Rule 1.2, Scope of Representation contains a prohibition regarding assisting clients in fraudulent conduct. The pertinent paragraph reads:
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal 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.
Rule 4.1 (a) (2) is a further refinement of the Rule 1.2 (d) duty which forbids a lawyer to assist a client in conduct that is criminal or fraudulent. This section states that ""a lawyer shall not knowingly. . . fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client...""
The comments to Rule 1.6 (b) (2) read:
Even if the involvement was innocent, however, the fact remains that the lawyer's professional services were made the instrument of the client's crime or fraud. The lawyer, therefore, has a legitimate interest in being able to rectify the consequences of such conduct, and has the professional right although not a professional duty to rectify the situation.
Exercising that right may require revealing information relating to the representation. Paragraph (b) (2) gives the lawyer professional discretion to reveal such information to the extent necessary to accomplish rectification.
This is a very good ""talking point"" as you try to get your client to correct the lie.
Rule 3.3 requires you to take remedial measures if the deposition, which is potential evidence ever actually becomes evidence with your client refusing to correct the lie. Rule 3.3 provides:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Ethically, you must seek to persuade your client to correct the falsity in the deposition. If he will not correct it, then you may disclose or simply withdraw from representation. However, if the
potential evidence actually becomes material evidence while you are the attorney, you have an affirmative duty to act upon the duty to disclose the existence of false evidence.
Under the old rules an attorney has been publicly reprimanded for failing to correct deposition testimony on a matter which was not directly germane to the issues in the lawsuit. See Attorney Grievance Commission of Maryland v. Sperling 296 MD 558 (1983).
"