MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2012-05
Confidentiality of Information: Disclosure of Information
The Committee on Ethics considered your inquiry and I have been assigned to respond on its behalf. An opinion was requested regarding disclosure of evidence to the State’s Attorney’s Office in the following hypothetical situation.
An attorney inherits a case as the seventh counsel of record in a homicide case involving the murder of a witness. One of the prior attorneys was removed by the court and is under investigation for suspicion of suborning perjury in the instant case by assisting Defendant’s family members in preparing an alibi defense. The present attorney received in the Defendant’s file a folder from the attorney accused of suborning perjury. The folder contained a document that can be described as a script for a witness detailing questions and answers for a witness to use for testimony. To the best of the present attorney’s knowledge the document conforms to the grand jury testimony of an alibi witness who is now indicted for obstruction of justice. The present attorney wants to know if disclosure of the document to the State’s Attorney is mandatory.
Rule 1.6 of the Maryland Rules of Professional Conduct would apply to the hypothetical presented and states in part:
- A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).
- A lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary:
Rule 1.6(b) is phrased in “permissive” rather than “mandatory” language. The lawyer is not required to disclose certain information even if the requirements of Rule 1.6(b) are satisfied. Rule 1.6(b)(2) does allow for possible disclosure ” to prevent the client from committing a crime or fraud.” Here the crime or fraud was already committed by the prior defense attorney, with the Defendant’s role unknown.
In your inquiry, you referenced Rule 8.4 (d) of the Maryland Rules of Professional Conduct regarding misconduct. I would refer you to Comment 2 of Rule 8.3 regarding reporting misconduct that states, “A report about misconduct is not required where it would involve violation of Rule 1.6. However, a lawyer should encourage a client to consent to disclosure where prosecution would not substantially prejudice the client’s interests.” Furthermore, reporting misconduct under Rule 8.3 means reporting to the appropriate professional authority, which would be the Attorney Grievance Commission of Maryland.
The Committee believes that turning over the evidence to the State’s Attorney’s Office in the hypothetical presented without “informed consent” would be a violation or Rule 1.6 of the Maryland Rules of Professional Conduct.
“Informed consent” denotes an agreement to a proposed course of conduct, after the lawyer has adequately informed the client of the material risks and reasonable alternatives to the proposed course of action. (MPRC, Rule 1.(f))
Thank you for consulting the Committee on Ethics.
REFERENCES:
MRPC, Rule 1.0, 1.6, 8.3, 8.4
ASSIGNED TO: Timothy A. Bradford
DATE ASSIGNED: October 31, 2011
DATE DISTRIBUTED: January 11, 2012