MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2001-19
Attorney Withdrawal of Representation and Disclosure Obligations Upon Client’s Intention to Withhold and/or Destroy Requested Document
Your inquiry presents the following factual scenario. In reviewing documents which would be responsive to your adversary’s request for production of documents, you and your client found a document in the client’s files which you state is clearly responsive to the document request and, therefore, should be produced. Your client, however, stated that he would refuse to produce the document, even after you explained that it was responsive and needed to be produced. The next day your client advised you that the document did not exist, implying, but without expressly stating, that the document had been destroyed.
In a subsequent telephone conversation with the undersigned member of the Ethics Committee, you stated that you had withdrawn your representation prior to any document production and filing of any discovery response so that your services would not be used to assist your client’s stated intent not to produce the requested document. Based on the foregoing, you raised two questions:
1. Do you have any obligation to inform successor counsel for your client of the facts described above?
2. Do you have any obligation to inform opposing counsel of the facts described above?
For the reasons stated below, you may but are not obligated to inform your successor counsel or adversary counsel of your client’s stated intention not to produce and/or possible destruction of the document in question. Rule 1.6 pertains to the duty of confidentiality between a client and an attorney and permits, but does not obligate, an attorney to reveal confidential information under certain circumstances. Rule 1.6(b) provides, in pertinent part, as follows:
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the 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 financial interests or property of another;
(2) to rectify the consequences of a client’s criminal or fraudulent act in the furtherance of which the lawyer’s services were used;
By withdrawing your representation prior to the production of documents and not participating in any misrepresentation regarding the document in question, your services were not used to further your client’s fraudulent act, and, therefore, Rule 1 .6(b)(2) is not applicable. With respect to Rule 1 .6(b)(l), whether or not your client’s intended fraudulent conduct is likely to result in “substantial injury to the financial interests or property of’ your adversary is a factual question which only you can determine. However, even if you believe that the intended conduct would result in such a substantial injury, Rule 1 .6(b)(1) permits but does not obligate you to make such a disclosure. See Attorney Grievance Comm’n. v. Rohrback, 323 Md. 79, 96 (1991); Ethics Docket No. 91-45 (attorney, following withdrawal of representation, is not obligated to follow the case to determine whether former client follows through on stated intention to engage in fraudulent conduct). Finally, in evaluating whether to make any disclosures, you should consider whether your client’s intended conduct may lead to a criminal act (such as perjury) and whether any disclosure by you might jeopardize a constitutional right of your client. See Comments to Rules 3.3 and 4.1; Rohrback, supra, 323 Md. at 92-93.
The Committee trusts that the foregoing is responsive to your inquiry.
This opinion, 01-19 makes references to opinion 91-45.
Other References:
Rules 1.6(b)(1) and (2); 3.3; 4.1
Attorney Grievance Comm’n. v. Rohrback, 323 Md. 79 (1991)