Can a lawyer reveal a client's fraud on a federal agency when the agency's regulations require disclosure?

Plain-English summary

Opinion 219 (adopted July 17, 1991) addressed a regulation of the U.S. Patent and Trademark Office, 37 C.F.R. § 10.85(b)(1), requiring a practitioner who receives information clearly establishing that a client has perpetrated a fraud on a person or tribunal during the representation to call on the client to rectify it and, failing that, to reveal the fraud. The inquiry sought to reconcile that regulation with a D.C. Bar member's ethical obligations.

The committee explained that, although the comments to Rule 8.5 address conflicts between the inconsistent ethical requirements of different jurisdictions, including federal tribunals, there is no problem absent a true conflict, and there was none here. Rule 3.3(d) requires a lawyer to reveal a fraud on the tribunal unless that would disclose information protected by Rule 1.6, in which case the lawyer must call on the client to rectify it; Rule 4.1(b) and Rule 1.6 point the same way, and a fraud committed by the client during the representation is normally a protected secret a D.C. lawyer could not disclose even if the client refused to rectify it.

There was an important exception. The committee concluded that Rule 1.6(d)(2)(A), which permits revealing client confidences and secrets when "required by law or court order," includes federal regulations having the force and effect of law, citing Chrysler Corp. v. Brown and the comments to the related Rule 1.6(d)(2)(B). So if a client refused to rectify a fraud where a federal tribunal's regulation required disclosure with the force of law, the lawyer could disclose without contravening Rule 1.6, 3.3(d), or 4.1(b). Whether 37 C.F.R. § 10.85(b)(1) was such a regulation was a question of law beyond the committee, but the committee concluded that before disclosing, the lawyer would have to notify the client and provide a reasonable opportunity to investigate and pursue any good-faith challenge to the regulation, citing Opinion 214. It noted that where the fraud was ongoing and would otherwise involve the lawyer's assistance, the lawyer would have to withdraw under Rules 1.2(e), 1.16(a)(1), and 3.3(a)(2).

Currency note

The D.C. Bar flags Opinion 219 as having been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective February 1, 2007.

This opinion was issued in 1991, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. 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: Could a lawyer reveal a client's fraud on the Patent and Trademark Office?

A: Yes, under conditions. The committee concluded a lawyer may reveal a client's fraud on a federal tribunal where the tribunal's regulations with the force of law require disclosure and the client refuses to rectify it.

Q: Did confidentiality under Rule 1.6 block that disclosure?

A: Not here. The committee concluded Rule 1.6(d)(2)(A)'s exception for disclosures "required by law" includes federal regulations having the force and effect of law, so disclosure would not violate Rule 1.6, 3.3(d), or 4.1(b).

Q: Did the lawyer have to do anything before disclosing?

A: Yes. The committee concluded the lawyer first had to notify the client and provide a reasonable opportunity to investigate and pursue any good-faith challenge to the regulation.

Q: What if the fraud was still ongoing?

A: The committee noted that, where the fraud is ongoing and would otherwise involve the lawyer's assistance, the lawyer would be required to withdraw under Rules 1.2(e), 1.16(a)(1), and 3.3(a)(2).

Background and rules framework

The opinion interpreted D.C. Rules 1.6(d)(2)(A), 3.3(d), and 4.1(b). Rule 1.6 generally protects a client's confidences and secrets, including a fraud committed during the representation; Rule 3.3(d) requires revealing a fraud on the tribunal unless doing so would disclose Rule 1.6-protected information; and Rule 4.1(b) bars knowingly failing to disclose a material fact to avoid assisting a client's crime or fraud, except where Rule 1.6 prohibits disclosure. Rule 1.6(d)(2)(A)'s exception for disclosures "required by law or court order," which the committee read to include federal regulations with the force of law, supplied the path to disclosure. The committee also discussed Rule 8.5 on conflicting jurisdictional requirements.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.6(d)(2)(A) / Model Rule 1.6 (disclosure required by law or court order)
• D.C. RPC 3.3(d) / Model Rule 3.3 (candor; revealing a fraud on the tribunal)
• D.C. RPC 4.1(b) / Model Rule 4.1 (truthfulness in statements to others)

Statutes and regulations:

• 37 C.F.R. § 10.85(b)(1), the PTO duty to reveal a client's fraud on a person or tribunal
• 37 C.F.R. § 1.56(a), the PTO duty to disclose information material to a patent application

Cases:

• Chrysler Corp. v. Brown, 441 U.S. 281 (1979), federal regulations may have the force and effect of law

Other opinions cited:

• D.C. Opinion 214: a lawyer may comply with a disclosure order after advising the client and giving a reasonable opportunity to seek review

See also

• DC Ethics Op. 392: Candor to the Tribunal and Confidentiality
• DC Ethics Op. 234: Defense Counsel's Duties When a Client Insists on Testifying Falsely
• DC Ethics Op. 311: Choice of Law for Professional Conduct in Non-Judicial Proceedings

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-219