MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-05
Does an attorney have an ethical obligation to affirmatively disclose to administrative agency information that a prior client has perpetrated a fraud upon said agency by offering evidence that the attorney knows to be false?
Your inquiry sets forth the following factual scenario: Attorney X engaged in an administrative proceeding before the Immigration and Naturalization Service in an attempt to reopen a long pending case. Through prior counsel, a married couple obtained a certification from the U.S. Department of Labor that there were not enough qualified and available workers to fill a position as a nanny. The couple sponsored the alien for this position. Several years have passed since this status was obtained and the alien subsequently applied for a permanent resident alien "green card" status. This process is deemed an adjustment of status pursuant to Section 245 of the Immigration and Nationality Act. The status was denied since said alien had not received notifications due to a change in address. Attorney X was retained for the purpose of attempting to reopen the case and reestablish the application for an adjustment of status and review. As a result, Attorney X filed the appropriate motions for the reconsideration. Shortly thereafter Attorney X was discharged and does not currently represent either the alien or her sponsoring employer. Attorney X, however, received notice that a final interview has been set before the Bureau of Citizenship and Immigration Services (formerly the I.N.S.).
Attorney X is certain that the employer will not be hiring the alien on a full time live-in basis to care for a minor child. You further state that the "live-in, full time nature of the position offered is…a material, indeed essential, part of the labor certification sponsorship pursuant to which the alien is applying for adjustment of status to that of an immigrant/permanent resident alien in the United States. You also advise: "under the law the Department of Labor only grants alien labor certifications for positions for which it has formerly certified that there are not sufficient U.S. workers available and qualified for the position in question. The Department of Labor's findings that there are not available U.S. workers for position as a live-in nanny is very different from a position as a part time, non live-in nanny, which is what Attorney X believes the position presently is."
You pose the following two questions: 1. Does Attorney X have an ethical obligation under the Maryland Rules of Professional Conduct to affirmatively disclose to the agency what Attorney X believes will be a fraud perpetrated upon the B.C.I.S., together with the facts upon which he bases his opinion? 2. Even if attorney does not
have a clear affirmative duty to disclose the fraud, does Attorney X have the discretion to do so or is he affirmatively barred from revealing to the B.C.I.S. the facts and circumstances which you have recited, including communications from his past clients, which led him to believe the fraud will be perpetrated?
Rule 1.2(d) provides: "a lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent, but a lawyer may discuss legal consequence of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."-
Rule 1.6 serves to protect the confidentiality of the relationship between a lawyer and a client and generally precludes a lawyer from revealing information relating to the representation of the client except for disclosures authorized under the rules of professional conduct. Rule 1.6(b)(2) however, provides: "a lawyer may reveal such information to the extent the lawyer reasonably believes necessary: to rectify the consequences of a client's criminal or fraudulent act and the furtherance of which the lawyer's services were used…."
Rule 3.3(a)(2) provides: "a lawyer shall not knowingly: 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(a)(2) states: "in the course of representing a client a lawyer shall not knowingly: fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client." Rule 4.1(b)(2) further states: "the duty stated in this rule will apply even if compliance requires disclosure of information otherwise protected by Rule 1.6."
The comments to Rule 1.6 discuss a lawyer's obligation when he has been innocently involved in the past conduct by a client which was either criminal or fraudulent. The comment states: "in such a situation a lawyer has not violated Rule 1.2(d), because to 'counsel or assist' criminal or fraudulent conduct requires knowing that the conduct is of that character." Even if the involvement was innocent, however, the fact remains that the lawyer's professional services were made the instrument of the client's crime or fraud. The lawyer, therefore, 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. Exercising that right may require revealing information relating to the representation.
The issues that you raise are somewhat similar to the issues found in Ethics Docket 95-16. In that opinion we noted that it is the Committee's opinion that your obligations to maintain confidentiality are not changed even though you no longer represent your former client. Rule 1.9(b) provides: "a lawyer who has formally represented a client in matters shall not thereafter: use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known." The comments under Rule 1.6 state: "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 a 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. See Rule 1.2(d) and 4.1."
Based on its analysis of the sections of the Rules of Professional Conduct set forth above, it is the opinion of the Committee to remonstrate with your former client abut your duty to be candid with the B.C.I.S. If your former client is unwilling to accept the advice that you give regarding your necessity to be candid with the B.C.I.S., you may, but are not compelled to, make disclosure of such information as is necessary to rectify the consequences of your former client's fraudulent actions.