If my client lied on an indigency affidavit to get a public defender, can I tell the court?

Plain-English summary

An indigent defendant completed an assets-and-liabilities affidavit, and based on it the court appointed the public defender. During the representation, the defendant confided that he had a trust fund he could access for up to $3,500. The question was whether counsel could reveal the concealed asset to the court.

The opinion analyzed three duties. It concluded that Rule 1.2(g), which requires a lawyer to reveal a client's fraud on a tribunal that occurs "in the course of representation," did not apply, because the fraud on the court (the affidavit) occurred before the public defender's appointment. It then concluded that Rule 1.6 imposes the duty of confidentiality except where revelation is permitted by the Rules or required by law or court order, and that Rule 3.3 states duties of candor before a tribunal that are continuing and apply even when compliance requires disclosing information otherwise protected by Rule 1.6.

Assuming the lawyer knew the court's knowledge of the concealed asset would preclude appointment of the public defender, the opinion concluded that the asset was a material fact and that disclosure could be necessary to avoid the lawyer assisting the client's fraud by silence, under Rule 3.3(a)(2) and (a)(6). It drew on Opinion No. 94-24, Opinion No. 91-24, and ABA Formal Opinion No. 93-376, and concluded that the lawyer not only may but might be required to reveal the information to the court if necessary to rectify the fraud after efforts to persuade the client to do so fail, because continued participation without rectification would assist the client in continuing to receive the public defender's services secured by fraud.

Currency note

This opinion was issued in 1996, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.2(e), 1.6(b)(2), and 3.3), while noting the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can the public defender tell the court the client concealed an asset?

A: Yes. The opinion concluded that under Rule 3.3 the lawyer may, and might be required to, reveal the concealed asset to the court if the client refuses to rectify the fraud, even though the information would otherwise be confidential.

Q: Why didn't Rule 1.2(g) control?

A: The opinion concluded that Rule 1.2(g) applies to fraud "in the course of representation," and the affidavit fraud occurred before the public defender's appointment, so that rule did not govern.

Q: Does confidentiality under Rule 1.6 prevent disclosure?

A: No. The opinion concluded that the candor duties of Rule 3.3 are continuing and apply even when compliance requires disclosing information otherwise protected by Rule 1.6.

Q: Must the lawyer try to fix it with the client first?

A: Yes. The opinion framed disclosure as the step to take if the lawyer's efforts to persuade the client to rectify the fraud are unsuccessful.

Background and rules framework

The opinion interpreted Rule 3.3 (candor toward the tribunal, including the duty to disclose a material fact to avoid assisting a fraudulent act and the rule that these duties are continuing and override Rule 1.6; Model Rule 3.3), Rule 1.6 (confidentiality; Model Rule 1.6), and Rule 1.2(g) (rectifying a client's fraud committed during the representation; compare Model Rule 1.2).

Citations and references

Rules of Professional Conduct:

• Model Rule 3.3 (candor toward the tribunal) / Illinois Rule 3.3(a)(2), (a)(6), (b)
• Model Rule 1.6 (confidentiality of information) / Illinois Rule 1.6(c)(1)
• Illinois Rule 1.2(g) (rectifying a client's fraud during the representation)

Other opinions cited:

• ISBA Advisory Opinions Nos. 94-24 and 91-24
• ABA Formal Opinion No. 93-376 (client fraud in pretrial discovery)

See also

• ISBA Ethics Op. 13-05: Lawyer's Discovery That a Client Submitted False Evidence
• ISBA Ethics Op. 16-02: Withholding Controlling Legal Authority From a Tribunal
• ISBA Ethics Op. 98-05: Discovery Abuses

Source

• Landing page: https://www.isba.org/ethics/opinions/9514