Opinion Number 574
I would like an opinion from the Committee on Professional Ethics concerning the following matter.
I was retained by husband and wife to represent the husband in his efforts to become a permanent resident of the United States. The husband had come to the United States as a visitor. The wife is a native-born citizen of the United States.
I proceeded to prepare a visa petition on the printed form supplied by the Immigration and Naturalization Service. After the form was completed, the wife signed it and I swore her to it in my capacity as a notary public. Question 11 (b) of the form reads, “Number of your prior marriages”. Question 11 (c) of the form reads, “Number of prior marriages of spouse”. Both the husband and wife stated to me that they had no prior marriages, and the questions were, therefore, answered “none” in both instances.
Thereafter, both the husband and wife were called to the Immigration and Naturalization Service on two occasions and testified under oath as to the truth of the contents of the petition. Subsequently, the husband came to my office and told me that, in fact, he had been married on one prior occasion but that the marriage had been terminated by divorce prior to his marriage to his present spouse. On a later occasion, he told me that his present spouse had, in fact, been married twice before and that her second marriage was subsisting at the time of her marriage to him.
Accordingly, the visa petition was false and the marital status upon which it was based was invalid. When I discovered that my clients had deceived me, I advised them that I would withdraw as their attorney and I sent a letter of withdrawal to the Immigration and Naturalization Service.
My specific problem is whether I am under an obligation to advise the Immigration and Naturalization Service as to the true state of facts or whether I am bound by the confidential relationship between my clients and myself not to make a disclosure.
One additional fact should be noted which was obtained by telephone call to the office of the inquiring attorney. This is that the matter is still pending before the Immigration and Naturalization Service.
In our opinion the inquirer is not prevented by a confidential relationship from making a disclosure. He should try to rectify the matter by a withdrawal of the application and should make such disclosure as necessary to prevent the application from being granted. First he should try to persuade his former clients to cause the application to be withdrawn and to make such disclosure as necessary. If they refuse to do this, he should do it himself.
The Canons principally involved are Canons 37 and 41, although Canons 15, 22, 29, and 32 are also involved (See A.B,A. 287).
The action of the husband and wife, either singly or together, would appear to violate Sec. 1001, Title 18, U.S.C.A., and involve the commission of a crime. In such a case, Canon 37 specifically excepts the disclosure from those confidences which a lawyer is bound by this Canon to preserve, and is therefore one of the recognized exceptions to what we have described as the lawyer’s “paramount duty” (N.Y, County 259) to preserve the confidences of his client. The attorney-client privilege is not always protected by law. “A client who consults an attorney for advice that will serve him in the commission of a fraud will have no help from the law. He must let the truth be told”. Cardozo, J. in Clark v. U.S., 289 U.S. 1, 15). And see our own Opinion 84; N.Y. City 358, and A.B.A. 156, and 155 in which it was said “ One who is actually engaged in committing a wrong can have no privileged witnesses – – – See also DR 4-101 (C) (3) and DR 7-102 (B) (1) of the American Bar Association’s Code of Professional Responsibility.
If the matter had been concluded, a different question might be presented for consideration (our Opinions 169, 259: A.B.A. 268, 274, 287). Here the matter is still pending and the attorney himself has unwittingly become a participant in what amounts to a fraud being perpetrated on an agency of the United States.
Dated: December 10, 1969.