If a client gave a false answer on a bonding application and won't fix it, can the lawyer tell the bonding company or the court, or must the lawyer withdraw?

Plain-English summary

A lawyer represented a client as administratrix of her late husband's estate in a wrongful death claim, which was settled. The lawyer later learned that, on an earlier bond application (and possibly in materials forwarded to a second bonding company), the client had answered "no" to a question about pending lawsuits when a divorce action alleging a common-law marriage was in fact pending against her. The omission mattered: if the client lost the common-law-marriage action, her marriage to the decedent could be held invalid and she could lose her claim to the estate. The lawyer asked whether he had a duty to advise the bonding company, to notify the probate court, or to withdraw, when each action would be against the client's interest.

The Disciplinary Commission concluded the lawyer could not unilaterally disclose anything to the bonding company or the probate court. It explained that Rule 1.6(a) makes all information relating to the representation confidential, and that Rule 1.6(b)'s two exceptions are narrow: disclosure to prevent a client's criminal act likely to cause imminent death or substantial bodily harm, and the self-defense exception for a controversy between lawyer and client. Neither applied to these facts, and a lawyer cannot disclose facts about a client's past crimes or fraud under Rule 1.6.

The opinion concluded, however, that if the lawyer's services were going to be used to further a fraud, the lawyer must withdraw. It treated the client's failure to answer truthfully and her failure to take remedial action as a possible ongoing fraud, the prior-marriage issue being material. Citing RO-90-76, the opinion noted that once a lawyer has withdrawn, he is no longer responsible for the client's continuing fraudulent conduct. The Commission directed that the lawyer should counsel the client to advise the bonding company of the error in the first application or authorize the lawyer to do so, and that if she refuses, the lawyer should withdraw.

Currency note

This opinion was issued in 1994, before the 2002 Ethics 2000 revisions to the ABA Model Rules of Professional Conduct and Alabama's subsequent amendments to its Rules of Professional Conduct. The confidentiality exceptions in Rule 1.6 have themselves been broadened since then. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer tell a bonding company that a client lied on an application?

A: No. The opinion concluded the lawyer cannot unilaterally disclose the client's past fraud, because neither of Rule 1.6(b)'s narrow exceptions applied.

Q: Must the lawyer withdraw if the client won't fix the false statement?

A: Yes. The opinion concluded that if the lawyer's services would be used to further an ongoing fraud, the lawyer must counsel correction and, if the client refuses, withdraw.

Q: Does the lawyer have to notify the probate court?

A: No. The opinion concluded the lawyer cannot disclose to the probate court at that point and that there was nothing to rectify with the court at that time.

Background and rules framework

The opinion interprets Rule 1.6 of the Alabama Rules of Professional Conduct (Model Rule 1.6, confidentiality of information), reading Rule 1.6(a)'s broad confidentiality duty together with Rule 1.6(b)'s then-narrow exceptions, and applies the mandatory-withdrawal principle where a lawyer's services would further a client fraud, consistent with prior opinion RO-90-76.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Ala. R. Prof. C. 1.6(a) and 1.6(b) (confidentiality; exceptions)

Other opinions cited:

• Alabama RO-90-76 (withdrawal where client persists in fraud)

See also

• AL Ethics Op. 1995-09: Confidentiality vs. Open Meetings
• AL Ethics Op. 1993-06: Duty Under Rule 3.3 to Disclose Adverse Information

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1994-09/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-94-09.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-94-09

QUESTION:

"I am currently representing a client who is the Administratrix of the Estate of her late husband. My client's late husband, X, was killed in a motor vehicle accident on March 8, 1994, and subsequently, I was retained to represent her as Administratrix of the Estate of X, and as the spouse of X, regarding a wrongful death claim against the adverse party in the motor vehicle accident. Husband X was survived by my client, two majority age daughters and a minor son. To be formally named as Administratrix of the Estate of X, my client was required to post a surety bond and obtain waivers from the other heirs consenting to her being named Administratrix. When applying for such a bond with Company A, my client was required to complete a bond questionnaire. One question listed on the questionnaire asked if my client had any pending lawsuits and she answered, 'No'. Thereafter, Company A denied my client a bond due to a pending Chapter 13 bankruptcy. Subsequently, I contacted bonding Company B about bonding my client in such matter. Company B's representative requested that I fax him Company A's bond application for his review. Thereafter Company B agreed to issue a bond with a requirement that joint control be exercised by me as client's counsel and I agreed. Also, Company B required that their bond application be completed and returned prior to issuing such bond. Such bond application did not inquire about pending litigation against my client.

Thereafter, wrongful death negotiations with the insurance company of the adverse party led to a settlement of the wrongful death claim. This settlement was for the amount of the limits of the policies of the adverse party. Out of the settlement proceeds were paid my attorney's fees and expenses, with my client receiving the remaining amount, such being in accordance with the law of distribution and the wrongful death statute. Subsequent thereto, I was advised by the attorney representing an heir of the Estate of X, that my client had a lawsuit pending against her in that she had been sued for divorce from an alleged common law marriage by a former live-in acquaintance. This action was pending at the time my client completed the bond application of Company A referenced supra. It is worth mentioning that another attorney has been representing my client regarding the pending divorce action since she received service on such. However, my client contends that there was not a common law marriage and that she feels that such suit is frivolous. Also, she has advised me that because there was a two-month period without any pleadings or communications between counsel for the parties in this divorce action, that she thought the matter had been dropped, thus explaining why she completed the bond questionnaire as she did.

Obviously, this is a serious matter for my client for if she is unsuccessful in her defense against the common law marriage divorce action, her subsequent marriage to X could be held invalid and she could lose any claim to X's Estate that she would have as surviving spouse. Her status as Administratrix of the Estate too, could be removed. Also, any monies received as surviving spouse in the wrongful death settlement could be required to be paid back into the Estate of X.

QUESTIONS FOR OPINION

1. Do I have a duty to advise bonding Company B of the omission on bonding Company A's questionnaire which was sent to Company B and probably relied upon by Company B, knowing such would be against my client's interest?

2. Do I have a duty to notify the Probate Court where the Estate of X is pending of the facts outlined above knowing such action would be against my client's interest?

3. Do I have a duty to withdraw as counsel for the Administratrix of the Estate of X knowing such action would be against my client's interest?"

ANSWER:

Rule 1.6 of the Rules of Professional Conduct applies to the facts you have set out. It provides as follows:

"Rule 1.6 Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(1) To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client."

Rule 1.6(a) says that all information relating to a lawyer's representation of a client is confidential. Therefore, nothing gained during the representation may be disclosed to anyone unless one of Rule 1.6's exceptions applies, or there is authorization from the client or a court.

Rule 1.6(b)'s two exceptions are limited ones. First, a lawyer may disclose confidential information to prevent a client from committing a criminal act only if it could result in "imminent death or substantial bodily harm". The second exception is essentially a self-defense provision for situations where there is a controversy between the lawyer and client regarding an aspect of the representation. In the latter exception, only such information as is necessary to establish the claim or defense may be disclosed. Your facts do not come within either of these exceptions.

Your client's failure to answer truthfully on the first bond application could be construed as an ongoing fraud, particularly since she has not taken any remedial action to correct it. The issue of a possible prior marriage is certainly a material one, under the circumstances. A lawyer cannot disclose facts about a client's past crimes or fraud under Rule 1.6. However, if a lawyer's services are going to be used to further a fraud, then the lawyer must mandatorily withdraw. In RO-90-76, the Disciplinary Commission noted that once the lawyer has withdrawn, he or she is no longer responsible for the client's continuing fraudulent conduct.

You cannot unilaterally disclose anything to the bonding company. You cannot disclose anything to the probate court at this point. There is nothing to rectify with the court now. The bonding company may elect to stay on the bond, and the divorce case may be frivolous as your client contends it is. You should counsel your client to advise the bonding company of the error in the first application or authorize you to do so. If she refuses, you should withdraw.

MLM/vf

7/27/94