between the lawyer and the client, or to establish a defense to a criminal charge, civil claim, or disciplinary com- plaint against the lawyer based upon conduct in which the client was in- volved or to respond to allegations in any proceedings concerning the lawyer’s representation of the client; (4) to comply with these Rules, a court order or other law.”3 In this particular situation, the client informed you of his deception in confi- dence. Furthermore, Rule 1.6 is permissive and does not impose an affir- mative duty on the lawyer to make any disclosures. Thus, a lawyer’s failure to re- veal that which he or she is permitted to reveal is not grounds for professional mis- conduct. See Attorney Grievance Comm’n
v.Rohrback, 323 Md. 79, 591 A.2d 488 (1991). Since Rule 1.6 is permissive, and be- cause the client’s conduct in this situation does not clearly fit within any of Rule 1.6 exceptions, the lawyer needs to be aware of their obligations under some of the other ethical rules in order to determine what is required of them.
The Lawyers Duty of Candor The Maryland State Bar Association Committee on Ethics (“the Committee”) has discussed the balancing act between guarding client confidences and a lawyer’s duty when the client lies in pretrial dis- covery.4
In fact, the pendency of the legal
proceeding requires the lawyer to act. What type of remedial measures are re-
quired? According to the Committee on Ethics, you must first counsel your client regarding the gravity of their conduct and attempt to persuade them to correct the record.5
needs to be done to rectify things. You should recognize that your actions could be scrutinized at some point down the road and, therefore, it is important to protect yourself.
In Attorney Grievance
Commission of Maryland v. Rohrback, 323 Md. 79, 591 A.2d 488 (1991), an attorney was disciplined because he failed to make sufficient disclosures of his cli- ents fraud on the Court in a criminal case. In his dissenting opinion Judge Chasnow advised, “[a]n attorney is in a delicate position when taking any action on be- half of a person who the attorney knows is perpetrating a fraud. The attorney must be careful to avoid assisting in the fraud and should anticipate any actions will be closely scrutinized.”6
In Attorney Griev-
ance Commission of Maryland v. Sperling, 296 Md. 558, 463 A.2d 868 (1983), the lawyer represented a husband and wife in a personal injury action when the wife lied in her deposition about her
5
MSBA Ethics Opinion 97-21 (Duties of Attorney When Client Lies in Pre-Trial Dis- covery).
6
Attorney Grievance Commission of Mary- land v. Rohrback, 323 Md. 79, 105, 591 A.2d 488, 501 (1991),
prior employment history. The plaintiff’s attorney was disciplined because he had knowledge the wife lied in her deposition and he failed to take remedial measures.7 If the client refuses to correct the fal- sity of their deposition, you have an affirmative duty to withdraw as counsel pursuant to Rule 3.3 “Candor Toward the Tribunal.”8
While the Committee is clear
that you must withdraw, the extent of your disclosure to the Court is unsettled. There is a split of authority on whether false deposition testimony constitutes fraud on the court and, consequently, the lawyer should be cautious in their disclo- sure to the Court.9
The Committee concludes that the best approach is for the lawyer to with- draw, disclosing as little as necessary to support the withdrawal. However, if the
(Continued on page 28) 7
Attorney Grievance Commission of Mary- land v. Sperling, 296 Md. 558, 565, 463 A.2d 868 871 (1983).
8 9
Maryland Rules of Professional Conduct, Rule 3.3(d).
MSBA Ethics Opinion 97-21 (Duties of Attorney When Client Lies in Pre-Trial Dis- covery).
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For example, your client could sign an affidavit that discloses the prior accident and resulting injuries. While this would likely be destructive to their case, the alternative is for them to maintain their story at trial and to perpetrate a fraud on the Court. You must make a serious attempt to remonstrate with your client and this should be done in a face to face meeting in your office, as opposed to a quick telephone call. You should also memorialize your attempts to persuade your client by sending a confidential let- ter outlining the seriousness of the situation and your suggestions on what
3 4
Maryland Rules of Professional Conduct, Rule 1.6(b).
MSBA Ethics Opinion 88-46 (Confidence and Secrets: Disclosure of False Statements Made By Client During Deposition).
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