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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-42
Candor Toward Tribunal; Declaring or Terminating Representation
In your letter dated, January 25, 1989, you provided the Committee with the following facts. A died inteste in 1981. She was survived by her husband, B, and two daughters, C and D, who were stepdaughters to B. After A's death, B created a false last will and testament for A, which was falsely attested to by C and D's husband, E.
The primary asset of A's estate was real estate. Under the false will, B received a life estate in the property and B, C and D each received one third of the estate. All were aware that under the intestacy laws B would have been entitled to one half of the estate. However, A and B had executed an ante-nuptial agreement, pursuant to which B renounced all right, title and interest in A's estate. Family members were not aware of that agreement.
In 1987 D died. At B's request, E signed, in blank, a renunciation of interest in an estate. B told E that the Renunciation was for A's estate. In fact, B used the renunciation to have himself appointed personal representative of D's estate.
E has hired you to seek to revoke the renunciation and have him appointed personal representative of D's estate. However, E has informed you that he does not want you to use in your motion the information you now have about A's estate. But, E may authorize you to use the information, if necessary, to show B's lack of truthfulness. If you are successful in having E appointed personal representative without making any disclosures about A's estate and you are then retained to prepare an accounting of D's estate, you would be required to provide information about D's assets which were obtained primarily through the fraudulent will, a fraud in which E participated. You have requested the Committee's opinion on two questions:
1. What duties of disclosure, if any, do you have concerning the fraud perpetrated on the court in the first estate? and,
2. Whether you must or may withdraw from representing E with regard to D's estate, and if withdrawal is required, at what stage of the proceedings must it occur.
The three provisions of the Maryland Rules of Professional Conduct applicable to your question are Rules 1.6, 1.16 and 3.3. Rule 1.6 generally prohibits a lawyer from revealing information relating to a representation unless the client consents. The rule permits disclosure of client confidences without client consent to prevent criminal or fraudulent activity by The client, to rectify the consequences of a clients criminal or fraudulent act in furtherance of which the lawyer's, services were used or to defend the lawyer.
Rule 3.3 provides, in part:
(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;
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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.
It is evident from the foregoing that a lawyer may, without a client's consent disclose information relating to a representation to rectify a client's fraudulent act ii- the lawyers services were used to further that act. Moreover, in a proceeding in which the lawyer is participating, the obligation of candor to the court, overrides the obligation to maintain the client's confidences.
However, the obligation to fully inform the court as to the facts and law with regard to any proceeding ends at the conclusion of the proceeding.
A's will was probated and the estate closed in 1983. You did not participate in that proceeding. Therefore, none of the exceptions in Rule 1.6 which permit disclosure without client consent apply in this situation. In addition, as discussed below, unless the earlier proceeding is raised in some way in the current proceeding, you are not required pursuant to Rule 3.3 to make any disclosure regarding The fraud perpetrated upon the court in that proceeding.
As to your current representation of E, you-may continue to assist him in his efforts to have himself, appointed D's personal representative, without disclosing his prior fraudulent action, so long as the information and arguments you present to the court do not relate to A's will. If E permits disclosure of information regarding A's fraudulent will, all relevant information must then be presented to the court. E could not authorize the disclosure of information on a selective basis.
If you are engaged to provide an accounting of D's estate and that does not require you to make any affirmative representation regarding the legitimacy of the probate of A's will, you may provide the accounting. In providing the accounting, you are merely valuing what was established as D's in the previous proceeding. You could not, Of course, take any action which requires an affirmative representation about the legitimacy of A's will or the circumstances surrounding it or seek to alter D's share without disclosing the relevant information you have.
As to withdrawal from the representation, Rule 1.16 requires withdrawal only if (1) the representation will result in violation of the rules of professional conduct or other law; (2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (3) the lawyer is discharged. Unless ordered to continue with a representation by a tribunal, a lawyer may withdraw from a representation at any time if the withdrawal can be accomplished without material adverse effect on the client, or in the following circumstances:
(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 fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an un reasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
If you believe that any of the foregoing circumstances are applicable, you may withdraw at any time whether or not there might be a materially adverse effect on the client's interests.
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