MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1995-16
DUTY TO REPORT MISSTATEMENTS OF FORMER CLIENT
You have advised us that you represented a woman for injuries you understood to have been suffered by the woman as a passenger in a motor vehicle accident. The client, in the initial interview with your office and, thereafter, in interviews with treating physicians, advised your office and the treating physicians that she had been a passenger in a motor vehicle at the time it was involved in an accident. The vehicle, you understood, was driven by a male companion. The client sought the assistance of your office to represent her as a consequence of the injuries she claimed to have suffered in this automobile accident. on her behalf, your office sought and obtained for her PIP benefits, both for the payment of medical bills and lost wages.
Somewhat later, your client contacted you and advised you that she had been sued by the male individual whom you understood to have been the operator of the motor vehicle. That individual alleged in the lawsuit filed against her that your client had been the operator of the vehicle. In response to these allegations, you confronted your client and she denied that she had been driving the vehicle, but instead maintained that she was the passenger in the vehicle. You provided this information to the PIP carrier (which also presumably provided liability coverage for the motor vehicle) and that insurance carrier appointed counsel to act on her behalf and 'to represent her in the defense of the litigation. The attorney appointed to represent your client by the insurance carrier advised you that he felt your mutual client had a strong case in defense of the allegations of the male companion and offered to assist you pursue litigation to recover damages for the injuries your client suffer. You made efforts to resolve her potential claims for such injuries, but those efforts were unsuccessful. As a consequence, you filed suit on her behalf, seeking recovery of damages for the injuries she claimed she had suffered in the accident. You also considered consolidating that action with the action previously brought by her male companion.
At the time that you were deliberating moving to consolidate the two cases, your client came to you and advised you that she had not been a passenger in the vehicle, but rather had alleged that she was a passenger in the vehicle as a favor to the male companion. She further advised you that the male companion had been operating the vehicle and that he had another female passenger in the vehicle whose identity he wished to keep secret. The client advised you that the male companion had, in essence, induced her to allege, falsely, that she had been a passenger to protect the identity of the actual female passenger.
Upon learning of this information, you have advised us that you voluntarily dismissed the lawsuit you had filed on your client's behalf, without prejudice, and have terminated your representation of her. We understand that the action brought by the male companion is scheduled for trial in November, 1994 and that the attorney provided by the insurance company is still representing her as a Defendant in that action. You have advised us that you have encouraged your now former client to be honest and direct with the lawyer representing her in that action and cautioned her about the potential implications of providing false testimony. Your letter does not indicate if your former client, has, in fact, provided honest information to her counsel.
With the foregoing as background, you have asked this Committee the following questions:
1. What duty, if any, do you have to communicate the information which has been imparted to you in the course of your representation to the following individuals:
A. The attorney representing your former client in her capacity as a defendant;
B. The insurance company that paid PIP benefits to the client, and;
C. The attorney representing the male companion in the lawsuit against your former client.
2. What, if any, duty do you have to disclose this information to either the State's Attorney's office and/or the Attorney generals office.
An analysis of your obligations, with respect to Questions 1 A, B and C, requires a review of the interplay of a number of the Rules of Professional Conduct. In particular, your obligation in these circumstances requires consideration of Rule 1.2, Rule 1.6, Rule 3.3 and Rule 4.1 of the Rules of Professional Conduct.
Rule 1.2(d) provides that the lawyer shall not counsel his client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent. Rule 1.6 protects the confidentiality of the relationship between a lawyer and a client and precludes a lawyer from revealing information relating to the representation of a client except for disclosures authorized by Rule 1. 6 (b). Rule 1. 6 (b) provides that a lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to prevent a client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the f inancial interest or property of another or ""to rectify the consequences of a. client's criminal or fraudulent act in the furtherance of which the lawyer's services were used."" Rule 3.3 provides that a lawyer shall not knowingly make a false statement of material fact or law to a tribunal or fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. Rule 4.1 provides that a lawyer, in the representation of a client, will not knowingly make a false statement of material fact to a third person or f ail to disclose -a material f act to a third person when disclosure is necessary to avoid assisting in a criminal or fraudulent act by a client.
The comments under Rule 1.6 make clear that, where a lawyer may have been innocently involved in past conduct of the client that was criminal or fraudulent, the lawyer nevertheless ""has a legitimate interest in being able to rectify the consequences of such conduct, and has the professional right, although not a professional duty to rectify the situation"". The comments also provide the following guidance: ""Where practical, the lawyer should seek to persuade the client to take suitable action"".
In assessing your situation, it is the Committee's view that your obligations to maintain confidentiality of information imparted to you by your client do not change, even though you have withdrawn from the representation of the client. In that regard, Rule 1.9 of the Rules of Professional Conduct establishes that a lawyer, who has formerly represented a client, may not thereafter use or reveal information relating to the representation, except as Rule 1.6 would permit.
However, the comments under Rule 1.6 also provide that:
""After withdrawal, the lawyer is required to refrain from making disclosure of a client's confidences, except as otherwise would be provided in Rule 1. 6. If the lawyer knows that despite the withdrawal, the client is continuing in conduct that is criminal or fraudulent, and is making use of the fact that that lawyer was involved in the matter, the lawyer may have to take positive steps to avoid being held to have assisted the conduct. See Rules 1.2(d) and 4.1.""
With the foregoing as background, and in response to your Question 1A, this Committee, on the basis of the facts you have provided, cannot conclude that you have any affirmative duty to reveal to the attorney representing your former client, in her capacity as a Defendant, information which she conveyed to you in confidence as to her not being a passenger in the vehicle. You have encouraged her to be truthful and honest with her lawyer, as is appropriate, given the comments under Rule 1.6. We gather from your inquiries to this Committee that you do not know if your former client, in fact, has disclosed the truth (assuming her last representation to you was true) to her existing lawyer. You also, presumably, are not aware as to whether your former client may be using your work product, such as the Complaint for the action that was dismissed, to provide information to her existing lawyer. In the absence of such information, this Committee cannot conclude that you may reveal information which your client imparted to you in confidence to her existing lawyer.
We would encourage you to consult further with the client to determine if she, has provided accurate information to you and her present lawyer.1 We would encourage you to seek to determine if she is using false information that was developed during your representation of her to advance her position. If you determine, from those inquiries, that she has not leveled with her existing lawyer and is using false information which you developed during your representation of her, then, in such instance, it may be incumbent upon you to reveal the truthful information to her lawyer, who may otherwise be induced by your former client to present false information to a tribunal. We encourage you, in your meeting with your client, to advise the client that you may have the obligation to share the truth with her new lawyer.
With respect to your Question 1B, it is this Committee's view that you may reveal confidential information that your client provided to you to rectify the consequences of her fraud (the receipt of PIP benefits) in furtherance of which your services were used. Rule 1. 6 (b) (2) expressly provides that a lawyer, under such circumstances, may reveal confidential information. Again however, the discretion rests with you as to whether such disclosure should be made. The comments under Rule 1.6 encourage you, prior to making such disclosure, to persuade the client to take suitable action. In this instance, you may want to consult with your former client and implore her to rectify the consequences of the fraud by returning the PIP benefits to the insurance company, either directly or through her current counsel.2 If your former client declines to accept your advice in this regard, then you may, but are not compelled to, make disclosure of such information as is necessary to rectify the consequences of the fraud.3
With respect to your inquiry IC, it is this Committee's view, on the basis of the facts you have presented to us, that you may not disclose any confidential information to the attorney representing the male who has alleged that he was a passenger in the vehicle driven by your client. In the Committee's view, your client has not done anything criminal or fraudulent which has affected the male driver of the vehicle or his counsel. In fact, the false position your former client has taken is contrary to her own interest relative to the claims of the driver. To the extent any responsibility may exist for you to disclose information relative to the claims of the driver, your responsibility in that regard would be to the lawyer representing your former client, as discussed above, and not to his opposing counsel.
In response to your second question, it is this Committee's view that you may not disclose confidential information relating to the representation of your client to the State's Attorneys Office and/or the Attorney General's Office. The comments under Rule 1.2 of the Rules of Professional Conduct provide as follows:
1 Although we see nothing in the Rules of Professional Conduct which would preclude you from consulting with your former client as to matters relating to that representation, it may be prudent for you to advise your client's current counsel that you intend to meet with her to discuss issues of concern to you arising out of that past representation.
2 In this opinion, we ]nave assumed that the insurer providing a defense to your former client is the same entity as paid her PIP benefits. If this is not the case, disclosure may also be appropriate to the second insurer, if you unknowingly provided false information which induced that insurer to provide a defense.
3 Under some circumstances, Rule 4.1 may be deemed to require an attorney to disclose his client's fraud to an affected third party. See Ethics Docket 92-30, attached hereto. In our view, Rule 4.1. does not apply in these circumstances because you did not knowingly make a false statement or knowingly fail to disclose a material fact during your representation of your client.