MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1990-23
Duty to Tribunal to Report Misstatements of Prior Client
You indicated that you represented a corporation before the Federal Communications Commission. The President and sole voting shareholder of the corporation was Mr. X. During your representation, you indicate that Mr. X lied to you on numerous occasions. As a result, you ultimately struck your appearance in the case. Subsequent to striking your appearance, it came to your attention that Mr. X had represented to the Administrative Law Judge by way of pleading that he had failed to comply with certain procedural deadlines due to the fact that you had never advised him of the existence of the deadlines. In fact, you had advised Mr. X of these deadlines in a timely manner and had sent copies of Orders to your client that contained deadlines relative to your case.
In essence, it is your conclusion that Mr. X has lied to the Administrative Law Judge in making representations to the effect that you had not properly advised him of deadlines relative to his case. The Administrative Law Judge accepted Mr. X's representations and denied the opposing party's motions to dismiss Mr. X's application before the Federal Communications Commission for default.
Your inquiry asks what action or procedure you can employ to rectify your former client's misrepresentation to the Administrative Law Judge.
Rule 1.6 of the Rules of Professional Conduct provides, in part, that: "A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (2) to rectify the consequences of a client's criminal or fraudulent act and the furtherance of which the lawyer's services were used." The comments to this Section provide additional insight into the lawyer's responsibility: "If the lawyer knows that despite the withdrawal, the client is continuing conduct that is criminal or fraudulent, and is making use of the fact that the lawyer was involved in the matter, the lawyer may have to take positive steps to avoid being held to have assisted the conduct." Your former client has indicated that you failed to take action that prejudiced his case. It is the Committee's opinion that your former client is using "your services" to further his fraudulent act and in doing so created a situation where you are permitted to reveal said information to the Administrative Law Judge to the extent you reasonably believe it to be necessary.
Rule 3.3 of the Rules of Professional Conduct addresses candor towards the tribunal. Section (a)(2) provides that a lawyer shall not knowingly "fail to disclose a material fact to a tribunal, which disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." The Committee draws your attention t the comments found in the Rules with respect to the remedial measures to be employed by counsel in situations where perjured testimony or false evidence is offered at trial. It is the Committee's opinion that your obligations to a former client do not differ from a current client and would recommend that you consider remonstrating with your former client confidentially before disclosure of your former client's fraudulent activities to the tribunal.