New Lawyers Tip: The Attorney’s Ethical Obligations When A Client Hides Their Past And Practical Tips To Avoid Being The Victim Of Client Deception.


by Kevin Finnegan


Kevin J. Finnegan (Goldberg & Finnegan, Silver Spring) received his J.D. from the Catholic University Law School. He is a member of the President’s Club as a Supporter and is an active member of the New Lawyers Section. He serves as one of the Maryland Representatives of the Association of Trial Lawyers of America (ATLA) New Lawyers Division. He is a member of the District of Columbia Trial Lawyers Association, the Montgomery Bar Association and Prince George’s County Bar Association. His practice concentrates in personal injury, medical negligence, premises liability and employment law.


We all remember the first time we got


duped by a client and learned the harsh lesson that our clients don’t always tell us the truth. The scenario is worse when the client offers false evidence in a pending legal proceeding. If counsel learns of the client’s deception, he or she must then consider what ethical obligations they have to opposing counsel, and the Court. This article will offer some guidance to the personal injury lawyer who learns his or her client lied under oath about their prior injuries or insurance claims. 1


It will


also offer practical advice on discovering your client’s history of injury and claims early in your representation, before that client – the one with a selective memory – deceives you. It is about one hour into your client’s deposition, and defense counsel starts with a litany of questions about prior in- juries, accidents, insurance and worker’s compensation claims. The questions are thorough and concise. Your client con-


1


This article should not be relied upon for legal advice. If counsel confronts an ethical problem in their representation of a client they should contact the Maryland State Bar Association Committee on Ethics or consult the advice of ethics counsel.


tinues to answer “no” “no” and “no.” This is consistent with what they told you since your initial intake meeting. It is consis- tent with how they completed your intake forms. No prior automobile accidents, no prior insurance claims, and no prior worker’s compensation claims. It is how your client answered their written discov- ery responses. Months later, your client comes to your office to prepare for trial. Your client comes clean and explains they were dis- honest in their deposition testimony. He was injured in a prior automobile colli- sion two years ago. He insists that it didn’t seem relevant to the particular accident in which he engaged your services. He injured his neck and back before but he treated with a doctor and got better. He maintains that his prior accident “has ab- solutely nothing to do with this accident.” After explaining to him the gravity of


his perjury, and that he put his whole case in jeopardy, you return to your office to figure out what to do. What are your ob- ligations? What are your options? Hoping that the other side doesn’t “find out” and crossing your fingers under counsel’s table when the defense lawyer starts his cross- examination at trial is not the answer. In fact, a failure to take remedial measures when you learn your client lied in pretrial discovery is professional misconduct.


The factual scenario set forth in this


article assumes that the lawyer was un- aware the client intended on providing false discovery responses and false depo- sition testimony, and that the lawyer provided no assistance in the client’s en- deavor. Such conduct clearly runs afoul of Rule 1.2 (d) and Rule 4.1 (a) of the Maryland Rules of Professional Rules of Conduct.2


Client Confidences Most of us are familiar with the pa- rameters of Rule 1.6 of the Maryland Rules of Professional Conduct. It is a logi- cal starting point for one to determine what can and can’t be done in this situa- tion. This rule prohibits a lawyer from revealing matters communicated in con- fidence and information learned in the representation of a client unless the client consents after consultation. There are four exceptions listed in Rule 1.6(b) which permit the lawyer to reveal client confi- dences when he or she reasonably believes it is necessary: “(1) to prevent the client from com- mitting a criminal or fraudulent act that the lawyer believes is likely to re- sult in death or substantial bodily harm or in substantial injury to the finan- cial interests or property of another; (2) to rectify the consequences of a client’s criminal or fraudulent act in the furtherance of which the lawyer’s services were used;


(3) to establish a claim or defense on behalf of the lawyer in a controversy


2


Rule 1.2 (d) prohibits a lawyer from coun- seling or assisting a client to engage in con- duct that the lawyer knows is criminal or fraudulent. Rule 4.1 (a) prohibits a lawyer in the course of their representation from (1) making a false statement of material fact or law to a third person and (2) failing to dis- close a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.


26 Trial Reporter Spring 2003


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