Ethics Opinion

Opinion 11-02

February 2011

Summary: If a lawyer appointed by the court to represent an indigent criminal defendant comes to know that his client filed an intentionally false affidavit of indigency, the lawyer may choose to serve without compensation. If he chooses not to do so, and the client refuses to rectify the fraud, the lawyer must seek to withdraw in accordance with the Rule 3.3(e) procedure and disclose the fraud in connection with his motion.

Facts: Prior to Lawyer's appointment, Client submitted an affidavit to the court claiming that he was indigent in order to obtain the appointment of an attorney in a criminal matter. In the course of discussion with client, Lawyer has come to know that in fact Client is not indigent and that Client knew that fact when he filed the affidavit. Lawyer inquires about his responsibility with respect to the false affidavit.

Discussion: The Committee has previously addressed the same issue in Opinion 76-17 and Opinion 91-6, both decided under the Canons of Ethics and Disciplinary Rules in effect prior to 1998. Those Opinions focused on DR 7-102(A)(7), which prohibited a lawyer from assisting a client in conduct that the lawyer knew was fraudulent, and DR 7-102(B)(1), which required a lawyer to reveal a fraud committed by the client in the course of representation to the affected person.  The Committee advised that, unless the lawyer was willing to serve without compensation, the lawyer must seek to withdraw and disclose the client's fraud to the court.

In this Opinion, we address whether a lawyer has the same obligations under the Massachusetts Rules of Professional Conduct in effect since 1998.  Several rules are involved in our analysis,  including: Rule 3.3, which governs candor towards a tribunal; Rule 1.2(d), which prohibits a lawyer from counseling or assisting a client in conduct the lawyer knows to be criminal or fraudulent; and Rule 4.1(b), which requires a lawyer to reveal information necessary to avoid assisting a client's criminal or fraudulent act.

We assume that when the inquiring Lawyer states that he "knows" that Client is not indigent and that Client knew that fact when he filed his affidavit, Lawyer is stating that he has met the "firm basis in fact" standard of knowledge set forth in Commonwealth v. Mitchell, 438 Mass. 535 (2003). When a lawyer discovers that a client has given material evidence before a tribunal and the lawyer comes to know of its falsity, Rule 3.3(a)(4) requires the lawyer to take "reasonable remedial measures". The Committee believes that Rule 3.3(a)(4) applies to information submitted in a pre-trial affidavit as well as to testimony at trial. If the client's affidavit gives false information about his assets and that information is likely to affect the court's determination of indigency, then we believe that the client has given materially false evidence within the meaning of Rule 3.3(a)(4).

Similarly, Rule 3.3(a)(2) provides that a lawyer must disclose material information to the tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. Obtaining free legal services from the government by submitting false information about indigency is undoubtedly fraudulent and, although the Committee does not give advice about substantive law, it may also be criminal. We also believe that a lawyer who submits an invoice to a government agency for compensation, knowing that the client is not indigent, is assisting the client in the fraud. See Rule 3.3, Comment [2A]. We reached the same conclusion in Opinions 76-17 and 91-6.

Rule 3.3(a) is a specific application of the more general rule, found in Rule 1.2(d) that a lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent. Rule 3.3(a)(4) is a specific application of Rule 4.1(b), which requires a lawyer to disclose material information to third parties when necessary to avoid assisting the client's criminal or fraudulent act. Both Rules 3.3(a)(2) and 3.3(a)(4) are, however, subject to an exception for cases governed by Rule 3.3(e), which applies in criminal cases when the lawyer knows that the defendant intends to testify falsely. The Comment to Rule 3.3 suggests that the same exception applies when the lawyer discovers after the fact that the client has given false testimony. There was no provision in the former Canons of Ethics or Disciplinary Rules comparable to Rule 3.3(e). We therefore address whether Rule 3.3(e) requires us to modify the advice that we have previously given.

Rule 3.3(e) provides:

In a criminal case, defense counsel who knows that the defendant, the client, intends to testify falsely may not aid the client in constructing false testimony, and has a duty strongly to discourage the client from testifying falsely, advising that such a course is unlawful, will have substantial adverse consequences, and should not be followed. If a lawyer discovers this intention before accepting the representation of the client, the lawyer shall not accept the representation; if the lawyer discovers this intention before trial, the lawyer shall seek to withdraw from the representation, requesting any required permission. Disclosure of privileged or prejudicial information shall be made only to the extent necessary to effect the withdrawal. If disclosure of privileged or prejudicial information is necessary, the lawyer shall make an application to withdraw ex parte to a judge other than the judge who will preside at the trial and shall seek to be heard in camera and have the record of the proceeding, except for an order granting leave to withdraw, impounded. If the lawyer is unable to obtain the required permission to withdraw, the lawyer may not prevent the client from testifying. If a criminal trial has commenced and the lawyer discovers that the client intends to testify falsely at trial, the lawyer need not file a motion to withdraw from the case if the lawyer reasonably believes that seeking to withdraw will prejudice the client. If, during the client's testimony or after the client has testified, the lawyer knows that the client has testified falsely, the lawyer shall call upon the client to rectify the false testimony and, if the client refuses or is unable to do so, the lawyer shall not reveal the false testimony to the tribunal. In no event may the lawyer examine the client in such a manner as to elicit any testimony from the client the lawyer knows to be false, and the lawyer shall not argue the probative value of the false testimony in closing argument or in any other proceedings, including appeals.

The text of Rule 3.3(e) focuses on testimony by the defendant at trial. Comment 7 notes that the purpose of Rule 3.3(e) is "to accommodate special constitutional concerns in a criminal case by providing specific procedures and restrictions to be followed in the rare situations in which the client states his intention to, or does, offer testimony the lawyer knows to be perjured in a criminal trial."  Comment 9 states that "the lawyer may not stand in the way of the client's absolute right to take the stand and testify." Given Rule 3.3(e)'s purpose to protect the client's right to testify in his or her own defense, it is possible to argue that the Rule should also extend to pretrial affidavits or testimony that relates to matters that will be involved at trial, such as a motion to suppress evidence on search and seizure grounds. That issue is not, however, involved in this inquiry.

The affidavit of indigency involved in this inquiry is not related to the client's trial testimony. It relates solely a matter that is ancillary to the defendant's guilt or innocence, the defendant's entitlement to a court-appointed lawyer. While a client may have "an absolute right to take the stand and testify," as Comment 9 notes, a client does not have an absolute right to obtain a lawyer free of charge when he or she is not indigent. Moreover, nothing in Rule 3.3(e) permits a lawyer to assist a client's perjured testimony by accepting compensation based on an intentionally false affidavit. We conclude, therefore, that Rule 3.3(e) does not apply to a fraudulent affidavit of indigency.

If the exception contained in Rule 3.3(e) is not applicable, the general principles set forth in Rule 3.3 apply. Lawyer must first advise Client of the consequences and attempt to persuade Client to deal with the false affidavit, perhaps withdrawing it. Advising Client of the consequences includes explaining any penalties that Client might incur if the court discovers Client's fraud. The fact that there may be such penalties, however, does not excuse Lawyer from urging Client to rectify the fraud.

If Client refuses to rectify the fraud, Lawyer may not apply to the court for compensation for his time and expenses. To do so would be assisting in Client's fraud. Lawyer may decide to proceed without compensation, as this committee suggested in its Opinions 76-17 and 91-6. If Lawyer is not willing to proceed without compensation, then Lawyer must seek permission to withdraw from the representation, disclosing the fraud to the court as required by Rules 3.3(a)(2) and (4) as we previously concluded in Opinions 76-17 and 91-6. In so doing, Lawyer should attempt to withdraw by motion to a judge other than the judge assigned to the matter, following, by analogy, the procedure outlined in Rule 3.3(e) to protect the confidentiality of Client's information. See also Purcell v. District Attorney, 424 Mass. 109 (1997).

The changes to the Rules of Professional Conduct made in 1998 raise one further issue. If Lawyer decides to proceed without compensation in the matter, does that sufficiently remedy Client's fraud so that the lawyer may proceed in the matter without explicit disclosure to the court of the false information in the affidavit of indigency? The Supreme Judicial Court adopted special Massachusetts Comment 2A to discuss the notion of what constitutes assisting fraud for purposes of this Rule. Comment 2A provides:

Comment 3 to Rule 4.1 states the general rule that the word "assisting" refers to that level of assistance that would render a third party liable for another's crime or fraud, i.e., assistance sufficient to render one liable as an aider or abettor under criminal law or as a joint tortfeasor under principles of tort and agency law. However, the concept of assisting has a special meaning in Rule 3.3 because it deals with a lawyer's conduct before a tribunal. The term assisting in Rule 3.3 is not limited to conduct that makes the lawyer liable as an aider, abettor or joint tortfeasor. Rule 3.3(a) is intended to guide the conduct of the lawyer as an officer of the court as a prophylactic measure to protect against the contamination of the judicial process. Thus, for example, a lawyer who knows that a client has committed fraud on a tribunal and has refused to rectify it must disclose that fraud to avoid assisting the client's fraudulent act.

The last sentence of Comment 2A requires disclosure of the fraud to the court when the client has refused to rectify it. It is possible to read the Comment as not permitting Lawyer to proceed without explicit disclosure of the fraud even if Lawyer is willing to represent Client without compensation. The Client's fraud, so the argument goes, consists not only of obtaining governmental funds for Lawyer's services when Client is not indigent, but it consists also of leading the court to believe that Client is indigent, for whatever effect that may have on the trial and perhaps on other proceedings in this or other matters.

The Committee does not believe that Comment 2A requires it to withdraw the advice it has twice given under former versions of the disciplinary rules. The basis of our previous advice was that the fraud consisted of the client getting a lawyer free of charge by means of a false affidavit. We concluded that service without compensation rectified the fraud. Since we regard the fraud as having been rectified, we believe that a duty to disclose the fraud does not arise.  We are not prepared to change the advice we gave without clearer direction from the SJC that fraud in this circumstance means something more than the client getting a free lawyer. We therefore reaffirm our previous Opinions 76-17 and 91-6.

This advice is that of a committee without official government status

This opinion was approved for publication by the Massachusetts Bar Association's House of Delegates on January 20, 2011.