Ezel / Ethics Opinions / DCBAR
DCBAR October 2009

Must a lawyer turn over a brief and affidavit to a former client when the documents were built on the client's fraudulent misrepresentations?

Short answer: The opinion concludes that a lawyer who drafted a brief and affidavit in reliance on a former client's fraudulent factual misrepresentations has no duty under Rule 1.16(d) to surrender those documents to the client, because Rule 1.2(e) bars assisting a client in conduct the lawyer knows is fraudulent and Rule 3.3 would be violated by giving the client documents the lawyer knows are false and expects the client to file. The lawyer may redact the misrepresentations and surrender only the clean portions, withhold the documents entirely if redaction is impractical, or (with the client's consent or under Rule 1.6(d)) give the unredacted documents to successor counsel with full disclosure of the fraud, and should demand the client destroy or return prior drafts and not file them.

Apply this to your situation

This page answers the general question as of 2009. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2009
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

Opinion 350 (published October 2009) addresses a lawyer who drafted a brief and affidavit incorporating factual representations from the client, then discovered the representations were false, refused to file the fraudulent documents, and withdrew. The former client (who owed no outstanding fees) demanded the documents, and the lawyer had reason to believe, though not actual knowledge, that the client intended to file them in going forward with the case. The question is whether the lawyer must surrender the documents under Rule 1.16(d).

The opinion starts from the Committee's settled position that the client file generally belongs to the client and must be surrendered on termination (subject to limited exceptions like Rule 1.8(i)). It then concludes that a former client is not entitled to a lawyer's work product containing fraudulent misrepresentations. Rule 1.2(e) bars a lawyer from assisting a client in conduct the lawyer knows is fraudulent, including by drafting or delivering documents the lawyer knows are fraudulent. The opinion concludes that a lawyer who knows the former client's representations are false and has good reason to believe the client intends to file the brief and affidavit would violate Rule 3.3 by surrendering those documents.

The opinion sets out the lawyer's options. First, where practicable and effective, the lawyer may redact all known factual misrepresentations, along with the legal analysis that relies on them, and surrender only the redacted documents; an effective redaction excises enough that the client cannot simply re-insert the fraudulent facts and refile. Second, if redaction is impractical or ineffective, the lawyer may refuse to produce the documents entirely. Third, if the client consents or Rule 1.6(d) applies, the lawyer may turn the unredacted documents over to the former client's successor counsel with full disclosure of the fraud. The lawyer should also write the former client demanding the immediate destruction or return of all prior drafts containing the misrepresentations and directing the client not to file them. If the client nonetheless tries to perpetrate a fraud on the tribunal and substantial injury to another's financial interests or property is reasonably certain, Rule 1.6(d) permits (but does not require) disclosure of the fraud to successor counsel or the tribunal, limited to what is reasonably necessary.

In practice

Under the D.C. rules as they stood at the time of the opinion, a lawyer who learns that work product was procured through the client's fraud is not required by Rule 1.16(d) to surrender that work product to the former client, even though the file ordinarily belongs to the client. The opinion concludes that surrendering documents the lawyer knows are fraudulent, to a client the lawyer reasonably believes will file them, would violate Rules 1.2(e) and 3.3.

The opinion concludes the lawyer's options are to redact the misrepresentations and surrender only the clean portions, to withhold the documents entirely where redaction will not work, or, with client consent or under Rule 1.6(d), to give the unredacted documents to successor counsel with full disclosure of the fraud; the lawyer should also demand destruction or return of prior drafts. It concludes Rule 1.6(d) permits, but does not mandate, disclosure of the fraud where substantial injury to another's financial interests or property is reasonably certain. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Do I have to give a former client work product I know is based on their fraud?

A: The opinion concludes no. Rule 1.16(d) does not require surrendering a brief and affidavit procured through the client's factual misrepresentations, because doing so would violate Rules 1.2(e) and 3.3 where the lawyer reasonably believes the client will file them.

Q: What are my options instead of handing over the documents?

A: The opinion concludes the lawyer may redact the misrepresentations and dependent analysis and surrender only the clean portions; withhold the documents entirely if redaction is impractical or ineffective; or, with the client's consent or under Rule 1.6(d), provide the unredacted documents to successor counsel with full disclosure of the fraud.

Q: What is an "effective" redaction here?

A: The opinion concludes an effective redaction excises enough material, including context where necessary, that the client cannot simply re-insert the fraudulent facts and file the brief essentially unchanged.

Q: Can I disclose the client's fraud to the new lawyer or the court?

A: The opinion concludes Rule 1.6(d) permits, but does not require, disclosure to successor counsel or the tribunal where substantial injury to another's financial interests or property is reasonably certain to result from the fraud, limited to what is reasonably necessary; disclosure to successor counsel is also available with the client's consent.

Background and rules framework

The opinion interprets D.C. Rule 1.16(d) (surrendering papers and property to which the client is entitled on termination), read with Rule 1.2(e) (not assisting client crime or fraud), Rule 3.3(a) (candor to the tribunal), Rule 1.6(d) (the crime-fraud disclosure exception), and the definition of "knows" in Rule 1.0(f). It applies these rules to work product procured through a client's factual misrepresentations.

Citations and references

Rules of Professional Conduct:

  • D.C. RPC 1.16(d) / Model Rule 1.16 (surrender of papers and property on termination)
  • D.C. RPC 1.2(e) / Model Rule 1.2 (not assisting client crime or fraud)
  • D.C. RPC 3.3(a) / Model Rule 3.3 (candor toward the tribunal)
  • D.C. RPC 1.6(d) / Model Rule 1.6 (crime-fraud disclosure exception); D.C. RPC 1.0(f) (definition of "knows")

Other opinions cited:

  • D.C. Bar Legal Ethics Ops. 250, 286, 333 (the client file belongs to the client and must be surrendered on termination)

See also

Source

Get today's answer for your situation

You just read a 2009 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.