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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1988-87
Attorneys: Duty to Report Fraud
Your inquiry advises of a change in the American Bar Association's position with respect to the responsibility of lawyers in the face of past client perjury. You inquire whether the Maryland State Bar has adopted a position identical or similar to the new ABA position. You also requested to be provided with copies of relevant Maryland State Bar Association opinions on this question.
As you indicate in your letter, the ABA recently issued Formal Opinion 87-53, which reversed the ABA's prior position on client perjury, and, with limited exceptions, requires disclosure of un-remedied client perjury if discovery of same is made prior to a conclusion of the proceedings in which the perjury occurred. The ABA cites Model Rule 3.3 (a) (b).
Effective January 1, 1987, the Court of Appeals of Maryland adopted a somewhat modified version of the Model Rules of Professional Conduct. However, insofar as your inquiry is concerned, there was no substantive change to the rules already existing in Maryland concerning client perjury. Prior to Maryland's adoption of the Maryland Rules of Professional Conduct, Maryland had a modified version of the Code of Professional Responsibility. As adopted in Maryland, but not in the ABA version, DR7-102 (B) (1) provides as follows:
""A lawyer who receives information clearly establishing that:
1) His client has, in the course of the representation perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if the client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal.""
The substance of the preexisting rule in Maryland was carried forward in the Maryland Rules of Professional Conduct in Rule 3.3 and 4.1. Insofar as your inquiry is concerned, there has not been a substantive change in the Maryland requirement.
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