Ethics Opinion

Opinion No. 94-8

August 1994

Summary: In the circumstances of this inquiry, a lawyer has an obligation to reveal to his client a conversation with a witness who claimed that the client intimidated him into executing a perjurious affidavit, which has not yet been filed. A lawyer should not file an affidavit that the affiant now claims is perjurious, and if the lawyer does not file the affidavit, the lawyer has nothing to report to the court with respect to witness fraud. The lawyer has insufficient information about client fraud or about any threatened client intimidation to impose any obligation to make disclosure to the court about his client.

Facts: A lawyer, L, represents P in a breach of contract action against D. D has filed a motion for summary judgment. P has given L an affidavit from W that supports P's cause of action, and L had planned to use the affidavit to oppose the motion for summary judgment.
L, however, has recently received a call from W, who said that while some of what was reported in the affidavit was true, a crucial portion dealing with a purported conversation between P and D was not. W stated that he was intimidated into signing the affidavit by P, who wrote it, and he feared retaliation from P if he refused to testify on P's behalf. W also expressed fear about committing perjury and added that his current intention was not to testify at the trial. At the end of the conversation, which took L completely by surprise, W stated that he did not wish L to report the conversation to P. L made no promises and broke off the conversation.
L poses the following questions.
"1. What duty, if any, do I have to W to not disclose to P the substance of W's communications?"
"2. What duty do I owe to P to disclose W's communication?"
"3. What duty do I owe the court to confront P with the alleged perjured testimony? Moreover, if P chooses not to correct any alleged perjured statement, what duty do I have to disclose the communication to the court?"
"4. In the exercise of any of the above duties, must I also seek to withdraw from the case?"
Discussion: Questions 1 and 2: W knew that L was P's lawyer when he called . It would normally not be a reasonable expectation for W to believe that he could speak confidentially to P's lawyer about taking action against P's interests. In addition, he did not ask L to keep the matter confidential until after he had given L the relevant information. We do not think that in those circumstances W can give L some relevant information and after the fact prevent L from telling his client. A problem would arise only if L led W to believe that he could tell L something in confidence, but that is not part of the facts L relates.
Indeed, W has no real expectation of confidentiality. If W refuses to testify in court, P will certainly know that. If L subpoenas him to testify and he tells his second story, P will know that too. One way or the other, W's position is going to come out sooner or later. For all these reasons, W cannot preclude L from discussing with P the best way to proceed with his case by preventing L from telling critical information to P.
Moreover, the usual issue in situations like this of disclosing the client's intent to commit a crime does not arise. L knows nothing from his client about any intent to commit a crime, either by way of perjury or by way of harming W. L's information comes from W, who is in a position to take whatever action he wants to protect himself.
On the facts as we know them, therefore, we advise that L has a duty to disclose W's communication to P.
Question 3: L also raises the question of the applicability of DR 7-102(B)(2), which provides: "A lawyer who receives information clearly establishing that . . . [a] person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal." W's affidavit, however, is not now before the court. There is therefore nothing operative that might constitute a fraud on the court.
If we are correct that L has a duty to tell P about his conversation with W, that answers the first part of question 3, although L will be putting the issue to P in the guise of presenting W's change of story and not in the guise of questioning P's story. We cannot speculate on the many possible reactions of P. As of the moment, all L knows is the two stories of W. For all L knows, there may be many reasons for W to change his story from a truthful to an untruthful version.
As far as W's affidavit is concerned, L may not submit it to defeat the motion for summary judgment at a time when W is claiming that the affidavit is perjurious. How L deals with W now seems a matter of strategy. If L can defeat the motion for summary judgment without the affidavit, that will defer the issue until L can deal with it further. Conceivably, L and P might decide that presenting the whole issue regarding W's stories at this point would itself defeat the motion for summary judgment. But L might also decide that the charge of intimidation would expose P to further dangers. At all events, that is a question of strategy not legal ethics.
As far as disclosure to the court is concerned, we advise that L does not have evidence at this time clearly establishing that P has committed any perjury. In the absence of such evidence, the question of disclosure does not arise.
Question 4: At the moment, none of the duties discussed above suggest any need to withdraw because L does not have evidence clearly establishing illegal conduct by his client so as to raise any such issue.

Permission to publish granted by the Board of Delegates on July 12, 1994. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.