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Commonwealth of Massachusetts


January 2001

LIES MY CLIENT TOLD ME

by
Roger Geller and Susan Strauss Weisberg

Is this a familiar nightmare? You represent a plaintiff in a car accident case. Liability is clear. The only issue is the extent of your client's damages, including a back injury. Two days ago, your client testified in a deposition that he never had been in an accident before and never had any other injuries to his back. Today, you run into a friend of the client's who knows you are representing the client and asks whether you are handling his first or second accident. You call your client immediately. The client admits to you that a year before the car accident, he had hurt his back in a fall at the friend's house. He tells you that he never made a claim for the earlier injury and hadn't said anything about it because he was afraid it would ruin this case. The client says that he will pursue the case no matter what and that he does not want to disclose the prior accident or injury. What should you do?

With only a few exceptions, Mass. R. Prof. C. 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client unless the client consents. The lawyer's obligation to maintain confidentiality is subordinated, however, to obligations owed to a tribunal under Mass. R. Prof. C. 3.3. If a client has engaged in a criminal or fraudulent act affecting a tribunal, or if the lawyer has offered material evidence that is later discovered to be false, the lawyer must rectify the fraud even if, as a last resort, rectification requires disclosure of a client confidence otherwise protected under Rule 1.6. Your client lied during his deposition rather than before a judge or jury, and the deposition transcript has not been submitted in court. Although there are no Massachusetts cases expressly ruling on the applicability of Rule 3.3 to pretrial discovery, Bar Counsel takes the position that a deposition should be treated in the same manner as a proceeding before a tribunal because of its potential use as evidence and its impact on the judicial process. This is consistent with the position of the American Bar Association's Standing Committee on Ethics and Responsibility. In ABA Formal Opinion No. 93-376 (1993), the Committee determined that Rule 3.3 applies to depositions, noting that reliance upon their content could be "outcome determinative, resulting in an inevitable deception of the other side and subversion of the truthfinding process which the adversary system is designed to implement." Comment [6] to Mass. R. Prof. C. 3.3 is to the same effect. In addition, Comment [2A] to Rule 3.3 advises that the rule is "intended to guide the conduct of the lawyer as an officer of the court as a prophylactic measure to protect against the contamination of the judicial process." See also Matter of Aronson, 14 Mass. Att'y Disc. R. 12 (1998) (lawyer's misconduct during deposition violated former Disciplinary Rule 7-102(C)(2) and (6), governing conduct before a tribunal).

The obligations created by Rule 3.3 apply only when the lawyer "knows" that the client's testimony is false. In the nightmare scenario, there is no question about the lawyer's knowledge. The client admitted to the lawyer that he had lied. In less definitive circumstances, the lawyer must consider all information available in reaching the determination. Knowledge is defined by Rule 9.1(f) as "actual knowledge of the fact in question." The rule also provides that knowledge may be inferred from all the circumstances. Willful blindness is the equivalent of knowledge. See Van Christo Advertising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416-17 (1998). If the lawyer does not know that the evidence is false, the lawyer must preserve the client's secrets.

A lawyer who knows that a client has made a misrepresentation in a deposition must also determine the materiality of the misrepresentation. Rule 3.3(a)(4) requires a lawyer to take remedial measures when the client has offered "material" evidence that the lawyer knows is false. In our scenario, the client's lies concern damages, clearly a material issue in the litigation.

Even where the lawyer knows of a material misrepresentation, disclosure is not the initial step in resolving the problem and may not necessarily be the ultimate remedy. The lawyer must first try to persuade the client to rectify the situation. This is good advice to the client whether or not the misrepresentation was material because even an inconsequential misrepresentation under oath could seriously undermine the client's credibility in the case. Disclosure by the client can also ameliorate the impact of having falsely testified in the first place, particularly if the correction to the record is prompt and accurate. Under some circumstances, it might be possible to amend the transcript and rectify the misrepresentation without outright disclosure that the client had lied. See ABA Formal Op. 93-376. In any case, advice to the client should include the warning that the lawyer will have to rectify the record if the client does not. See Comment [6] to Rule 3.3.

If efforts to persuade the client to rectify the fraud fail, the lawyer is required by Rule 3.3(a)(4) to take "reasonable remedial measures." See Comment [5] to Rule 3.3. The question then arises whether the lawyer's obligations can be satisfied simply by withdrawing from the case. The client's lies and refusal to correct the record give the lawyer grounds for withdrawal under Mass. R. Prof. C. 1.16(b), and the lawyer has to withdraw if staying in the case would make the lawyer a participant in the client's fraud. Mass. R. Prof. C. 1.16(a)(1) (withdrawal required when continued representation will result in violation of rules of professional conduct). Upon withdrawal, the lawyer could disaffirm any positions taken by the lawyer that were based on the client's misrepresentations. Mass. R. Prof. C. 1.6, Comment [16].

In our scenario, however, withdrawal alone would not constitute a sufficient remedial measure. Rule 3.3(a)(2) requires a lawyer to disclose a client's fraud to the extent necessary to avoid "assisting" the fraud, even if the information is otherwise protected by Rule 1.6. Comment [2A] to Rule 3.3 establishes a special meaning of "assistance" that goes beyond the conduct associated with an aider or abettor or a joint tortfeasor. Under that special definition, a lawyer's mere failure to disclose an unrectified client fraud of itself constitutes assisting in the fraud Thus, the lawyer in our scenario would have to disclose the client's misrepresentations to the court or to opposing counsel even if the lawyer withdrew from the case. Moreover, after disclosure and rectification of the fraud, withdrawal might not be necessary.

What if the case is not in suit and instead, after making a settlement demand, you learn that you have misrepresented the client's medical or accident history in the demand letter sent to opposing counsel? In cases not before a tribunal, Mass. R. Prof. C. 4.1 creates a more limited duty to disclose information to third parties in order to avoid "assisting" a client's fraudulent act. "Assistance" has a narrower meaning under Rule 4.1 than under Rule. 3.3. See Comment [3] to Mass. R. Prof. C. 4.1. In addition, the lawyer's obligations under Rule 4.1 are limited by the duty of confidentiality under Rule 1.6. Those limits, however, are not absolute. Rule 1.6(b)(3) permits disclosure of a client's false statement "to rectify client fraud in which the lawyer's services have been used," and Rule 1.6(b)(1) allows disclosure to prevent the commission of a criminal or fraudulent act which is likely to result in "substantial injury to the financial interests or property of another." Consequently, Rule 4.1 can mandate disclosure when failure to do so will assist the client in perpetrating a crime or fraud on a third person that will result in "substantial" financial injury to another. The lawyer, in any event, cannot continue to represent the client to effectuate the settlement if the client fails to authorize correction of the erroneous information in the demand letter.

Finally, note that the obligations described in this article apply in civil cases only. Lawyers representing criminal defendants are subject to Mass. R. Prof. C. 3.3(e) and are obliged to respect the special constitutional protections available in criminal cases.



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