MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2013-03
Whether you have a duty to disclose what may have been fraud by your client relating to a proceeding in an immigration court.
You have requested an opinion concerning whether you have a duty to disclose what may have been fraud by your client relating to a proceeding in an immigration court.
You advise that several years ago, you filed a petition for asylum for client A, which was granted by the immigration court. The petition was based on the representation that Client A’s brother had been killed by the military of his native country. You also filed for client A, who was granted, legal permanent residence. In addition, you were retained by Client A’s “friend”, Client B, to file for legal permanent residence, which was also granted. Client B’s original status was also asylum, which he had obtained with assistance from another attorney.
Client B recently spoke to you because Immigration and Customs Enforcement (ICE) had questioned him about some past activities, and were coming back to talk to him again. During the course of your conversation, after giving you confusing and contradictory information, Client B revealed that he and Client A are brothers. You state that, if what Client B told you is true, Client A committed fraud relating to both the petition for asylum as well as the filing for the legal permanent residence.
While you do not intend to represent either Client A or Client B going forward you inquire as to whether you have a duty to disclose the information about Client A from Client B to ICE or the immigration court. You advise that, as a legal permanent resident, Client A will need to file for a new legal permanent resident card every ten years, which may be a continuation of fraud on the immigration court.
Main Rules to Consider
Rule 1.6 provides, in pertinent part, that:
(a) 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 permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
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(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;
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(6) to comply with these Rules, a court order or other law.
Rule 1.9(c) provides that a “lawyer who has formerly represented a client in a matter. . .shall not thereafter: . . .(2) reveal information relating to the representation except as these Rules would permit or required with respect to a client.”
Rule 3.3 provides, in pertinent part, that:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
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(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Rule 4.1 provides:
(a) In the course of representing a client a lawyer shall not knowingly:
(1) make a false statement of material fact or law to a third person; or
(2) fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
(b) The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
Analysis
Rule 1.6 prohibits disclosure of any information relating to the representation of a client. As stated in comment 2 to that Rule, “A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” The purpose for this principle is to foster the trust that is the hallmark of the client-lawyer relationship. Id. Thus, a lawyer should proceed with caution in deciding whether to reveal a client’s confidential information.
Here, in addition to your obligations to both Clients A and B under Rules 1.6 and 1.9, relating to duties to former clients, and Rule 1.18, relating to duties to prospective clients, to not reveal information learned during the consultation with Client B. Rule 1.6 permits, but does not require, a lawyer to disclose confidential client information. Thus, nothing in Rule 1.6, 1.9 or 1.18 requires you to reveal the information you learned from Client B to ICE or the immigration court.
Rules 3.3 and 4.1 require a lawyer to disclose information otherwise protected by Rule 1.6 in certain circumstances. Rule 3.3 generally requires candor to a tribunal. It appears that the immigration court falls within the definition of a tribunal under Rule 1.0 (o). A lawyer’s duty to correct a false statement of fact made by a lawyer or to reveal a material fact to avoid assisting a criminal or fraudulent act by a client continues to the conclusion of a proceeding. It is not clear based on the facts you presented that you have actual knowledge that Client A made false statements, although you assume so, and you have not spoken to client A. If you were to represent Client A to renew his legal residency card, you would be prohibited from making a false statement or failing to disclose a material fact in the course of applying for a new legal residence card.
However, you state that you do not intend to represent client A or Client B in the future. Further, based on the fact that both asylum and legal permanent residence were granted to Client A nearly ten years ago, the Committee assumes that any “proceeding” in which you represented Client A has concluded. Thus, it does not appear that you are required to make a disclosure to the immigration court.
Rule 4.1 generally requires that, in the course of representing a client, a lawyer shall not knowingly be untruthful. However, as you do not currently represent either Client A or Client B, Rule 4.1, does not appear to apply.
While the Committee is certainly troubled by the fact that your former Client A may have made false statements in order to gain asylum and legal permanent residency, it does not appear under the circumstances you have presented that you are required to disclose the information you learned from Client B about Client A to either the immigration court or ICE. To the contrary, you may be required to obtain the informed consent, as defined by Rule 1.0(f), of both Client B and Client A to do so.