Ethics Opinion

Opinion No. 91-4

April 1991

Summary: An attorney who learns that his client has told material lies to a probation officer in connection with pre-sentence investigation is required by the Disciplinary Rules to disclose that fraud to the court if the client's effort to obtain a lighter sentence by lying constitutes a crime. If the lawyer believes that there is a substantial claim that the client's privilege against self-incrimination prevents disclosure, the lawyer must obtain a ruling on that issue before making disclosure. If the client's fraudulent statements do not constitute a crime, the lawyer must seek to withdraw from representation.

Facts: An attorney has been assigned to represent a criminal defendant charged in federal court. The defendant has agreed to plead guilty, and at a change of plea hearing, the defendant testified under oath with respect to the facts alleged in the charge. At a subsequent interview with the probation officer, the attorney noted that the defendant's evasiveness was apparent. After the session, the client told him that the name under which he was indicted was not his true name. He has been using a new identity, including a new social security identity, for the last 10 years to avoid deportation as an illegal alien. The client stated that he has a criminal record under his new name, but not under his old name. He asserted that the only lie told directly to the court was that statement of his name. However, the defendant lied to the probation officer with respect to questions about details of his personal history. The attorney advised his client about the consequences of misrepresentation as well as the consequences of disclosure, and the client has instructed him not to make any disclosure. The attorney inquired about his obligation to disclose the information about the change of identity.
Discussion: This inquiry presents four questions for the committee: (1) Shall we advise an attorney where a federal matter is involved? (2) Did the lies told by the defendant constitute "fraud on the court" within the meaning of DR 7-102(B)(l)? (3) Does the reasoning of our Opinion 89-1, which found a mandatory obligation to disclose in a similar situation in a civil proceeding, apply to this criminal proceeding? (4) What is the effect of a claim under the Fifth Amendment on our advice under the Disciplinary Rules?
First. The committee has concluded that since the federal district court has, in its Rule 83.6 (4)(B), adopted the Massachusetts rules of professional conduct as its basis for lawyer discipline, it is appropriate for the committee to give advice to attorneys in federal matters. We accompany all such advice with the same caution that we give with respect to advice in state matters: lawyers should be aware that since this committee is not an official governmental body, federal courts, like state courts, may, when called upon to interpret these rules, interpret them differently from the way we have.
Second. DR 7-102(B)(l) provides that
A lawyer who receives information clearly establishing that ... His client has, in the course of representation, perpetrated a fraud upon a ... tribunal shall promptly call upon his client to rectify the same, and if the client refuses or is unable to do so, he shall reveal the fraud to the ... tribunal, except when the information is protected as a privileged communication.
It is the committee's view that the client's lies to the probation officer constituted a "fraud on a tribunal" within the meaning of that section. Whether or not the statement of his adopted new name to the court constituted a fraud on the court with respect to the burglary for which he was charged, it is apparent that the lies to the probation officer obstructed the investigation that the officer was making on behalf of the court in connection with sentencing and therefore constituted a fraud on the court.
Third. In Opinion 89-1, we advised that DR 7-102(B)(l) required a lawyer to disclose perjury by a client during depositions in a civil proceeding if the client refused to correct the perjury and if (1) the client intended to repeat the perjury at trial or if (2) the past perjury, together with future intended conduct in the litigation, would constitute a new and distinct crime. We reached that conclusion because in our view DR 4-101(C)(3)'s purpose to prevent the commission of future crime gave the lawyer discretion to reveal the client's intention to commit a future crime, even if the disclosure revealed the client's past perjury. If the lawyer had discretion to reveal the communication, it could hardly be regarded as "privileged" under DR 7-102(B)(1).
While we pointed out in Opinion 89-1 that we were not advising with respect to criminal matters, the present inquiry forces us to address the problem of mandatory disclosure in the criminal proceeding context. DR 7-102(B)(l) draws no distinction between fraud in civil and fraud in criminal proceedings, and the factual situation in the present case is similar to that in Opinion 89-1. While the lies to the probation officer are completed, their effect is not completed because the sentencing has not yet taken place. Whether the obtaining of a lighter sentence by perjuring oneself constitutes a crime is a question of substantive law and we are prohibited under our rules from advising as to matters of substantive law. But if it is a crime, then the exact same question is presented in this case that we answered in Opinion 89-1.
In our view, the reasoning underlying Opinion 89-1 answers this inquiry precisely. The information concerning the lies to the probation officer is not protected as a privileged communication if the client's effort to obtain a lighter sentence thereby constitutes a crime. In that event, the lawyer's obligation to disclose would be mandatory under DR 7-102(B)(1) if the client refuses to rectify the fraud.
We should point out that our Opinion 89-1 has been criticized by former Bar Counsel (now Judge) Daniel Klubock. See his Commentary in 17 Mass. Lawyers Weekly 977 (1989). In suggesting that a lawyer has the obligation to withdraw without disclosing the perjury, he makes two points. The first is that the opinion is impractical. Referring to the fact situation in that case, he states that at the time the lawyer withdraws, the lawyer does not know what the client's intention will be at the time of trial. On that analysis, DR 4-101(C)(3) would be a dead letter. When the client rushes out of the lawyer's office waving a gun and saying that he is going after the defendant, then under the Klubock view the lawyer should do nothing because the lawyer does not know what the client's intention will be when he finds the defendant. We think that DR 4-101(C)(3)'s purpose to prevent the commission of crime would not be served by that interpretation. Moreover, the point does not even apply to the present inquiry for, assuming a crime is involved, the client does not have to retell his lies to commit it. There is no new intention to ascertain. Action by others, based on the lies, will accomplish the defendant's intent.
But the former bar counsel makes a more serious analytical point. He argues that "Analytically it would probably be more valid to say that because a lawyer may not reveal a client's past criminal act, the lawyer must not exercise discretion to reveal the client's intent to commit a future crime if to do so would necessarily reveal the client's commission of a past crime." That states the issue quite succinctly. Is it more important to prevent a future crime or is it more important not to reveal client's commission of past crime in this situation? For example, in the hypothetical just put may the lawyer call the police or the intended victim when the client has rushed out of the office claiming that he is going to commit murder when the lawyer knows that if the police catch the client with this particular gun, it will clinch the case in a pending charge against client for having shot someone else?
One may reasonably argue the policy question put by former bar counsel either way. But the Disciplinary Rules do not say that a lawyer may never reveal information that might disclose a client's past criminal act. They do say that a lawyer may reveal the client's intention to commit a crime and the information necessary to prevent the crime. That seems to us to make the information not "privileged." The rules also require a lawyer to reveal fraud committed on a court during the course of the lawyer's representation--all fraud, including criminal fraud--and the rule then excepts only "privileged communications." We therefore believe that the wording of the rules points in the direction of the answer to the policy question that we gave in by Opinion 89-1.
We also believe that the wording of the rules answers the parallel argument that the word "crime" in DR 4-101(C)(3) should not be read to include the client's intention to commit perjury in the very case in which the lawyer was hired. There is nothing in the rules that suggests that interpretation. The purpose of the rule is to prevent future crime, and the lawyer would appear to be given discretion to reveal confidential information to prevent future crime relating to any matter, including perjury, in which he or she has been hired. That interpretation is supported by the rather explicit instruction to lawyers that they shall not "Knowingly use perjured testimony." DR 7-102(A)(4). That interpretation is also supported by the policy choice made in the more recent Model Rules of Professional Conduct (which have not been adopted in Massachusetts). See MR 3.3(a)(2) and (4) and Comment thereto. It is also the solution chosen by those jurisdictions that refused even to adopt the exception for privileged communications in their version of DR 7-102(B)(1).
Finally, we should mention former bar counsel's point that perjury in criminal cases is covered specifically by SJC Rule 3:08, Defense Function 13b. While that rule covers some aspects of the perjury problem, it does not cover this case, even if we are to assume that lying to a probation officer constitutes "perjury." As noted in our Opinion 89-1, DF13b only covers the situation when the lawyer discovers before trial the intent to commit perjury. While earlier drafts of that rule were more comprehensive, the court decided not to attempt further guidance in order to "await further developments." DF13b therefore is not controlling.
We would, however, repeat the caution that we expressed in Opinion 89-1. Some commentators have argued that disclosure by the lawyer of information received from the client violates the client's privilege against self-incrimination, either under federal or state law. See Freedman, Understanding Lawyers' Ethics 135ff (1990). Our rules do not permit us to address substantive questions of law and so we express no opinion on the issue whether there is a Fifth Amendment privilege and if so, whether it has been waived. See Fisher v. United States, 426 U.S. 391 (1975). We do advise, however, that the lawyer has a duty to decide whether the privilege against incrimination issue is a serious one, and if it is, the lawyer has a duty to figure out the best way to raise the issue of the applicability of the privilege and to obtain an authoritative ruling before making a disclosure under DR 7-102(B)(1).
The final issue is the lawyer's obligation in the event that the obtaining of a lighter sentence through lying to the probation officer does not constitute a crime. DR 7-102(A)(4) prohibits a lawyer from using "perjured testimony or false evidence." DR 7-102(A)(7) prohibits a lawyer from counselling or assisting a client "in conduct that the lawyer knows to be illegal or fraudulent." DR 2-110(B)(2) requires a lawyer to seek the court's permission to withdraw in any case where the lawyer "knows or it is obvious that his continued employment will result in violation of a Disciplinary Rule." Continuation of employment would appear to involve the lawyer in violation of DR 7-102(A)(4) or (7) or both and the lawyer should therefore seek permission to withdraw.

Permission to publish granted by the Board of Delegates on June 7, 1991. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.