MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2001-05
Duty to Report Perjury of Opposing Party; Duty to Report Misconduct of Opposing Lawyers(s)
You state that you represent a real estate broker in a matter currently in litigation. Your client has sued a real estate partnership and the matter also concerns previous litigation involving Company A and Company B as well as Mr. Y, a Principal of the real estate partnership. You report that during the pendency of the present litigation you ascertained that parties involved in the underlying litigation “staged” an event to wrongfully inflate Mr. Y’s damages and that Mr. Y made a statement under oath in support of the staged event, which you deem to constitute perjury. You do not indicate whether Mr. Y is a lawyer. Mr. Y’s lawyer in that proceeding, Attorney Y -1, who also happens to be a minority partner in Company B, has withdrawn from representation of Mr. Y and has retained his own counsel, Attorney Z. You report that it is likely that he knows Mr .Y lied to the Court under oath regarding the inflated damages.
Mr. Y now has a new lawyer, Attorney Y -2. The other Principals of Company B have also retained an attorney, Attorney B. You state that Attorney B was not involved in the underlying litigation and that Company B did not submit perjured materials to the Court, but it appears that Company B was an accomplice in this matter. You also state that you have advised Attorney Y -I, Attorney Y -2, Attorney B and Attorney Z that you believe you all have an ethical obligation to report the alleged perjury and improper inflation of damages to the Court. You state that you have not received any cooperation from the other lawyers and have, in fact, been threatened in various ways by them. You conclude by asking the following questions:
1. Does Attorney B, who represents Company B, have an obligation to report the incident to the Court?
2. Do Attorney Y -2 and Attorney Z have any ethical obligations to report the alleged perjury to the Court?
3. Do you have an ethical obligation to report Mr. Y’s perjury to the Court?
4. If any of the attorneys is required to report the perjury to the Court and fail to do so, are you obligated to report them to the Bar?
5. Are you compelled to report Attorney Y -Ito the Court or to the Bar?
6. Is there anything else you are required to do?
This Committee typically does not provide formal opinions on matters in litigation in recognition that one or another side in litigation may seek to use this Committee’s opinion to advance its cause. The Committee does not want to impinge upon the function of the Court system to direct proceedings under its control. The Committee will not usually issue an opinion as to conduct of someone other than the person requesting the opinion. Further, the committee issues opinions on the proper interpretation of the Maryland Lawyers’ Rules of Professional Conduct and will not issue opinions on questions of law. Accordingly the Committee declines to address the first and second questions posed by you.
In this instance the Committee is prepared to respond to the latter four questions because you have asked the Committee to assist you in evaluating your own ethical obligations in this matter.
With regard to question three, nothing in the facts, as presented by you, indicate that Mr. Y is a lawyer licensed to practice law in Maryland or that you have had an attorney-client relationship with him. Accordingly, the Committee finds no basis for an ethical obligation under the Rules of Professional Conduct compelling you to report Mr. Y’s conduct to the Court. You should be mindful that pursuant to Rules 8.3 and 1.6, as discussed below, you should discuss Mr. Y’s perjury with your client and obtain your client’s consent to disclose information relating to your representation of him.
With regard to questions 4 through 6, Rule 8.3 (a) of the Rules of Professional Conduct provides that a lawyer having knowledge that another lawyer has committed a violation of the Rules of Professional Conduct shall inform the appropriate professional authority if the alleged conduct raises a “substantial” question as to another lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. You must exercise your own professional judgment to determine whether the alleged conduct of the various lawyers violated any of the Rules of Professional Conduct and raises a substantial question as to their fitness as lawyers.
Subsection (c) of Rule 8.3 specifies that disclosure is not required if the information or knowledge is otherwise protected by Rule 1.6. Rule 1.6 provides in pertinent part that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation. In Ethics Docket 94-26, this Committee addressed the interplay of Rules 8.3 and 1.6. In that matter, Lawyer A, in the course of representing Client A, acquired information about illegal conduct by the opposing counsel, Lawyer B. Client A, believed that the filing of a grievance against Attorney B would have a negative economic impact on his litigation and opposed disclosure of Attorney B’s wrongdoing by Attorney A. In Ethics Docket 94-26, this Committee concluded that where Rules 8.3 and 1.6 come into play in situations such as that described in this inquiry, an attorney may, but is not required to report the professional misconduct of an another lawyer.
The commentary to Rule 1.6 states that the confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. The commentary and also provides that “[A] lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.” The commentary to Rule 8.3 notes that if a lawyer was required to report every violation of the Rules, a failure to report any violation would itself be a professional offense. The commentary advises that such a requirement existed in many jurisdictions but proved to be unenforceable. Additionally, in Ethics Opinion 97-3 this Committee found that Rule 1.6 is permissive in nature and that failure to reveal that which may be revealed is not professional misconduct. In the event that you determine that any of the other lawyers identified by you have committed a violation of the Rules of Professional Conduct, you should consult with your client about the matter and obtain his/her consent to disclose the alleged wrongdoing to the Attorney Grievance Commission. Neither you nor any of the other lawyers are compelled to report Attorney Y -1′ s misconduct.
With regard to question 6, Rule 8.3 provides that a report of substantial misconduct is to be made to the appropriate professional authority. Rule 8.3(a) requires knowledge that another lawyer has committed a violation of the Rules of Professional Conduct. The Rules of Professional Conduct define knowledge to denote actual knowledge, which may be inferred from circumstances. The commentary to Rule 8.3 advises that the phrase “appropriate professional authority” refers to “the bar disciplinary agency unless some other agency, such as a peer review agency is more appropriate in the circumstances.” In Maryland, the appropriate bar disciplinary agency is the Attorney Grievance Commission. The Rules do not articulate other requirements for a lawyer who determines that he or she shall report another lawyer’s violation of the Rules of Professional Conduct. If you believe you have sufficient information regarding the alleged perjury, it is recommended that you report the alleged criminal conduct to the appropriate authority. This Committee cannot opine on other additional requirements that may be imposed upon you by law according to the particular circumstances of your case.
We trust that the foregoing has been responsive to your inquiry and appreciate your consulting with the Committee.
This opinion, 01-05 makes references to opinion 94-26.
REFERENCES: Rules of Professional Conduct 1.6,8.3 and 8.4;