NEW YORK COUNTY LAWYER’S ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 706
An attorney previously represented a claimant in an administrative agency proceeding. During the course of a subsequent representation of the client, the attorney learned that the facts stated by the client during the former representation and relied upon by the administrative agency (the “Agency”) were untrue. The attorney is no longer representing the client, and has been asked to appear voluntarily before the Agency as a witness in connection with its current investigation into the matter that was the subject of the former representation. The inquirer asks whether, absent a court order, he may testify as to all the facts and circumstances within his knowledge?
It would appear that the information in question constitutes a “confidence” or “secret” pursuant to DR 4-101 of the Lawyer’s Code of Professional Responsibility (the “Code”), since the term “confidence” is defined as “information protected by the’ attorney-client privilege under applicable law” and “secret” ‘‘refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” Because the information regarding the client’s fraud was learned by the inquirer during the course of a representation — albeit unrelated to the representation in which the client committed perjury — and because the disclosure of the information in question would be detrimental to the former client, the information is protected under DR 4-101 as a “secret.”
The attorney’s duties to the Agency are governed by DR 7-102 of the Code. DR 7-102(B)(1) requires a lawyer who knows that his client has perpetrated a fraud upon a tribunal in the Course of the representation to “promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud to the affected person or tribunal, except when the information is protected as a confidence or secret.” The term “tribunal” as used in the Code includes all “adjudicatory bodies.” Def. 6. The attorney who learns that his client has testified untruthfully is required to “remonstrate” with the client.
“First, the client should be advised that false testimony may be a crime. . . .Second, the client should be advised of the strategic risks incurred by falsely testifying or by not making prompt disclosure of false testimony ….Third, the client should be urged by the attorney to testify truthfully or, where relevant, to make full disclosure of the true facts where perjury has already been committed. “Wolfram, Client Perjury, 550 S. Cal. L. Rev. 809, 846-47(1977).
These obligations survive even after the representation has been completed. If the client, however, refuses to disclose the false testimony voluntarily, its status as a secret under DR 4-101 prevents the attorney from revealing the information in most cases.
DR 4-101(0 lists limited circumstances under which a client’s confidences and secrets may be revealed. These include, inter alia, (1) when the client consents, (2) when the attorney is required by law or court order to do so, and (3) when the client intends to commit a crime and revealing the confidence or secret is necessary to prevent the crime. It is usually within the attorney’s discretion whether to reveal a confidence or secret in these circumstances. See N.Y. State 562 (1984). However, when the confidence or secret is the fact that the client has perpetrated a fraud on a person or tribunal, DR 7- 101(B) (1) makes disclosure of the fraud mandatory if any one of the situations listed in DR 4-101(c) apply.
Here, however, the former client has not consented to the disclosure and the inquirer has not indicated that any law or court order requires him to reveal the client’s fraud. DR 4- 101(C)(3) only applies to future crimes, not those already committed. N.Y. State 523 (1980). Thus, absent the client’s consent or a court order, the attorney may not reveal the client’s fraud to the Agency unless the failure to correct the completed perjury or some other conduct of the former client constitutes a continuing crime under the substantive law of New York.
An attorney who learns that a former client has committed fraud on a tribunal may not voluntarily reveal the relevant facts to the tribunal if the information is protected as a client confidence or secret.
March 7, 1995