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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-53
Confidence & Secrets: Duty of attorney to disclose to Court confidential information obtained in representation of client who is not a party to the case before the Court
In your letter, you state that you represent Attorney A against whom a grievance has been filed. The grievance stems from the attorney's handling of an adoption proceeding which is not yet final. In that proceeding, Attorney A represented the adoptive parents and, based on a conversation with the birth mother, he prepared an affidavit to be signed by the birth mother stating she could not identify the birth father. He also prepared the Petition for Adoption, signed by the adoptive parents, stating that they had no knowledge of the identity of the birth father.
A written agreement of intent regarding the adoption was entered into prior to the birth of the child and the adoptive parents agreed to reimburse certain expenses. The birth mother contacted Attorney A to complain that the adoptive parents had made inadequate reimbursements. Attorney A referred the birth mother to Attorney B. The latter subsequently advised Attorney A and the Court that the birth mother, in fact, could identify the birth father. The birth mother has filed the grievance against your client, alleging among other things that your client ""urged"" her to sign the affidavit of paternity, knowing it was a false affidavit.
After the grievance was filed, Attorney A met with the adoptive parents to discuss the developments of the case. During the meeting the parents informed Attorney A that they had kept a diary of all telephone conversations regarding the adoption. With the consent of the adoptive parents, Attorney A photocopied the diary. Attorney A and the adoptive parents then agreed that it would be best for the parents to seek other counsel and your client withdrew from the representation.
Also following the filing of the grievance, the judge handling the adoption proceeding held a hearing, at which the birth mother testified she had perjured herself when she signed the affidavit stating she could not identify the birth father. The judge then stated that he assumed the adoptive parents would testify that they did not know the birth mother could identify the birth father; otherwise, he would not grant the adoption. The adoptive parents' diary contains three separate entries which specifically refer to the birth father by name and which predate the false Affidavit and the Petition for Adoption. Clearly, therefore, if the adoptive parents testify that they did not know the birth mother could identify the birth father, they will be committing perjury.
You would like to know (1) what obligation do you have to reveal to the adoption tribunal the fact that the adoptive parents knew the identity of the birth father; (2) whether the diary would be a communication protected by the attorney-client privilege in the adoption proceeding; (3) whether you may use the diary on your client's behalf if the grievance leads to an inquiry panel; and (4) of the diary.
Initially, please be advised that whether a particular document is protected by the attorney-client privilege is a question of law governed by the rules of evidence. The Committee does not answer questions of law, and so will not address that issue. See, e.g. Ethics Docket Number 84 -82.
The rest of your inquiry calls into question the balance between a lawyer's duty to keep confidential information relating to the representation of a client, and the lawyer's duty to be truthful with the tribunal. The analysis of this problem must begin with your client's duty of confidentiality. The information contained in the diary is information relating to the representation of the adoptive parents, and thus the information is confidential and may not be revealed without the parents' consent except in certain limited circumstances. Rule 1.6. The duty to keep information confidential continues even though the client-lawyer relationship is terminated. See Rule 1.9.
Disclosure to the Court
Rule 1.6(b)(2) gives a lawyer professional discretion to disclose confidential information #$to rectify the consequences of a fraudulent act in the furtherance of which the lawyer's services were used."" Lawyer A's services were clearly used by the adoptive parents in connection with the preparation and filing of a Petition for Adoption which was signed by the adoptive parents and falsely represented that they had no knowledge of the identity of the adoptive parents. Lawyer A ""has a legitimate interest in being able to rectify the consequence of such conduct, and has the professional right although not a professional duty to rectify the situation."" Comment to Rule 1.6, Disclosure Adverse to Client.
Your attention is also called to Rule 3.3 which requires your client, Lawyer A to take remedial measures if the adoption proceeding is still pending. Rule 3.3 provides:
(a) A lawyer shall not knowingly:
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(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.
See also the comments under the heading ""False Evidence"" and ""Remedial Measures.""
Disclosure in Grievance Proceedings
Rule 1.6(b)(3) authorizes disclosure of confidential information ""to establish a defense to a... disciplinary complaint against the lawyer based upon conduct in which the client was involved or to respond to allegations in any proceedings concerning the lawyer's representation of the client."" You have stated that several references in the diary support your client's position concerning her lack of knowledge of the birth father's identity. The Committee feels that Rule 1.6(b)(3) permits Lawyer A, through you, to divulge the contents of the diary on a limited basis. Your client has been charged with a grievance concerning his representation of the adoptive parents. It does not matter that the grievance was filed by the birth mother and not the adoptive parents. The Comment to Rule 1.6 states, however, that:
disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.
Finally, this Committee does not have the authority to determine what sanctions a Judge may impose upon you.
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