Ethics Opinion

Summary: An attorney whose client is accused of possible criminal conduct by a witness during a recess in the trial of a contested divorce and custody matter is under no obligation to withdraw from the case or reveal the accusation to the court or other appropriate authority where the client denies the accusation and there is no indication that the client intends to engage in criminal or other illegal conduct.

Facts: During the mid-day recess on the third day of the trial of a contested divorce and custody matter, the attorney for the wife was approached by a witness subpoenaed by the husband who advised the attorney that prior to the trial the wife had attempted to convince the witness to kill her husband. The wife was present during the conversation and denied the accusation. The attorney has inquired (i) whether he should continue to represent the wife; (ii) whether he should ask the court to declare a mistrial in order that new counsel may be retained; and (iii) whether he is under an obligation to reveal the accusation to the court or the appropriate authorities.

Discussion: The facts presented to us do not fit squarely within the terms of any disciplinary rule. While questions somewhat similar to the one now before us have traditionally been dealt with in the context of Canons 4 and 7, nothing in either of these canons requires, in our opinion, that the attorney take any of the actions described in his inquiry.
While the accusation against the client was serious and involved possible criminal conduct on her part, it was not, on the facts before us, supported by anything other than the witness' own statement and was denied by the client. That being the case, the attorney would be fully warranted, in the absence of any information to the contrary, in concluding that the accusation was false. In fact, the attorney's duty of loyalty to his client would seem to require him, in these circumstances, to resolve any doubt in favor of his client. Certainly, this is not a situation where the client has revealed an intention to commit a crime nor is it one where the client has admitted engaging in past criminal conduct. In the former situation, the attorney would, of course, be under an obligation to reveal the information (DR 4-101(C)(3); ABA Opinion 314); in the latter, he would not. See ABA Opinion 287.
In the last analysis, any decision to withdraw from the case must, of course, depend on the attorney's own assessment of whether, given the serious accusation made against his client, he can continue to represent his client zealously and with objectivity. If the attorney sincerely believes that the accusation, even though denied by his client, might impair the independence of his professional judgment in the matter, then and only then, should he consider withdrawing from the case.
Even in that situation, however, the attorney should keep in mind the possible hardship which might be caused his client by withdrawing at such a late stage of the proceeding. See DR 5-101(B)(4).