MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2012-14
RE: COUNSEL’S DUTIES AS REGARDS CLIENT’S UNSUCCESSFUL ATTEMPT TO USE ALTERED ORIGINAL VETERINARY MEDICAL RECORD UPON CEASING REPRESENTATION OF CLIENT
REFERENCES: Maryland Rules of Professional Conduct 1.2(d), 1.6(a), 1.9(o) and (b), 3.3 and 3.4.;Ethics Docket 95-16
In your letter of April 13, 2012, you requested an opinion as to the appropriate conduct of a law firm where the firm learns of a client’s alteration of an original veterinary medical record, successfully convinces the client not to use the altered document in a trial, and then later comes to learn that there may be additional legal proceedings where the original record could be the subject of discovery, and possible use in those proceedings.
Background: Your law firm was engaged to represent a Maryland veterinarian and his veterinary hospital in a District Court action regarding professional veterinary services provided. In the course of that representation the client produced the original medical record to your law firm; the firm copied it and returned the original to the client.
Several months later, when the matter came on for trial, the client brought the original medical record for use in the trial. Upon examination by the lawyers assigned by the firm to try the case, it was discovered for the first time that the original medical record contained an additional notation that was not there when your firm first received and copied the original several months earlier. That notation, according to the client, contained the precise factual predicate upon which to successfully defend the professional malpractice charges. Trial counsel, after discussion with the clients, instructed the client that the original medical record in its client file would not be used in any way at the trial and, if the clients insisted otherwise, the firm would either counsel clients to identify the alteration to Plaintiff or, if client refused, withdraw as counsel.
Upon completion of the plaintiff’s case, the District Court entered judgment for your firm’s client as a matter of law. Based upon your inquiry, it appears that the medical record was not admitted into evidence and there was no testimony by your client regarding the medical record. The altered medical record was not used in any way and your firm believes it remains in the client’s file as the original record of treatment of the patient animal.
Plaintiff has now signaled an intention to file a de novo appeal and, also, to file a Complaint with the Maryland State Board of Veterinary Medical Examiners. Your firm wishes to better understand its ethical obligation going forward.
Discussion
When initially presented with this problem the firm acted promptly to make sure it was not engaging in, or assisting its client in engaging in conduct that would have been criminal or fraudulent. MRPC 1.2(d) makes it clear that a lawyer may not counsel, engage in, or assist a client in engaging in such conduct. Indeed, by discussing the legal consequences of the use of the altered document, counseling the client on the application of the law, and informing the client that its choices were to forego the use of the document or lose the firm as its counsel, Rule 1.2(d) was strictly adhered to. Moreover, because your firm was successful in preventing any use of the altered document in the trial, there is no issue of any continuing duty to disclose the fact of the altered document to the District Court. See MRPC 3.3, which would require trial counsel to not knowingly offer false evidence or, if the falsity was discovered after such evidence had been offered, take reasonable remedial measures.
Now, however, your firm fears the client may wish to use the altered document to defend itself in either a professional licensing complaint or a de novo trial of the same matter. Since the firm has indicated it will not participate in any further litigation of this matter, your firm is concerned about its duty to its former client in connection with any cooperation with a successor firm.
The committee believes this is clearly a matter governed by MRPC 1.6, which states, in relevant part as follows:
Rule 1.6. Confidential Information.
(a) A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent,…, or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;…
* * *
Simply stated, the question is can the law firm disclose the client’s actions in altering the original record to successor counsel in the case? First it should be clear that Rule 1.6(a)’s prohibition applies to all “information relating to representation of a client…” It is not required that the information be confidential, or that it was intended to be covered by any privilege. The fact of the altered document is just the kind of information the Rule was intended to protect and, as such, it may not be disclosed to anyone without the client’s consent, unless 1.6(b) applies. This duty to keep client information confidential does not end with the law firm’s withdrawal from any further representation. See MRPC 1.9(c). See also, Ethics Docket 95-16.
Upon any request for the file from successor counsel, the law firm must first make sure the client understands exactly what is in the file and what the disclosure of the copy of the unaltered medical record will clearly demonstrate to successor counsel. Once that has been done, should the client consent to the file being given to new counsel, then the law firm must do so.
On the other hand, should the client refuse to give consent, the Committee believes that Rule 1.6 does not permit the law firm to disclose the copy of the unaltered medical record to anyone, including successor counsel, absent the applicability of one of the provisions of Rule 1.6(b). In the first place, the Rule 1.6(b) exceptions are not mandatory, just permissive. Moreover, except for 1.6(b)’s permission to disclose the information to us or to counsel assisting the law firm, the Committee does not believe that any of the other exceptions in 1.6(b) apply. There is no reasonably certain death or substantial bodily injury; there is no threatened crime or fraud reasonably certain to result in substantial financial injury; there are no facts to suggest that there is a necessity to prevent or rectify substantial injury to the interests or property of another; there have been no claims made against the law firm, no criminal charges, no civil claim and no disciplinary complaint. Finally, there are no Rules or other law requiring disclosure,1 and, at least as of now, there are no court orders requiring disclosure.
The inquiring law firm also has asked if it may maintain a separate work product file for its personal counsel, which would contain relevant documents, including the altered record, as well as internal memoranda reflecting the firm’s ethical concern and advice to the client. Again, since disclosure to the firm’s personal counsel is permitted under Rule 1.6(b)(4), the Committee sees no reason why such a separate file cannot be maintained.
4820-9965-0575, v. 1
1 MRPC 3.3 and 3.4 requiring candor toward the court and fairness to opposing party and counsel, are not your law firm’s issue, inasmuch as the document was neither used nor referred to. At least at this stage it is only speculation by the law firm that the client will attempt to use the document through new counsel. The Committee believes that the actions taken by the law firm, specifically informing client of the illegality and foolishness of trying to use the altered document, have been in conformance with the law firm’s obligations. It is not, given the above discussion of Rule 1.6, the law firm’s obligation to take any action to prevent the client from pursuing the same course of conduct with successor counsel.