ETHICS OPINION 622-1974 CANDOR: DUTY TO DISCLOSE PRIOR FOREIGN DECREE

NUMBER 622

QUESTION.

A lawyer is asked by a husband to institute a divorce proceeding in New York. The wife had secured a prior decree of divorce in another country of which she is a national, The husband has asked the lawyer not to disclose the prior decree to the court or to ask the court to declare it void. The husband represents to the lawyer that the prior decree was obtained without notice to him until after the decree was entered and that it was based on perjured testimony and on the wife’s false statement that she did not know of his whereabouts.

 

The question is whether it would be professionally improper for the lawyer to agree not to disclose the prior decree to the court, on the theory that it was a nullity?

 

ANSWER.

 

DR 1-102(A)(4) provides that a lawyer shall not ‘engage in conduct involving dishonesty, fraud, deceit, or misrepresentation’.

 

DR 7-102(A)(3),(4),(5),(7), provide that a lawyer, in his representation of a client, shall not ‘conceal or knowingly fail to disclose that which he is required by law to reveal’; ‘knowingly use perjured testimony or false evidence’; ‘knowingly make a false statement of law or fact’; nor ‘counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent’. See also EC 7-26; EC 7-27; EC 7-36; Can, 7.

 

This Committee does not pass on questions of law and therefore expresses no view as to whether the lawyer would be required by law or by the custom or practice of the court to plead or otherwise disclose the prior decree. If there is any such requirement it should, of course, be complied with.

 

Even if there is no such requirement, the nature of the proceeding is such as to indicate that disclosure may be required in order that the lawyer may be entirely candid with the court and opposing counsel, such as, for example, if there be an inquiry by the court as to whether or not any such decree has been made or any other divorce proceeding has been brought. If the client will not agree that the lawyer be free to disclose the facts should the lawyer feel constrained to do so, the lawyer should not accept the employment. DR 7-101(B) (2); EC 8-5; EC 9-6.

 

March 14, 1974