If a lawyer learns that a former client may have committed perjury in an ongoing civil case, must the lawyer report it, and what should the client's current lawyer do?

Plain-English summary

Attorney Y had substituted in to represent Client C in contested civil litigation, then later substituted back out in favor of Attorney X. After Y was out of the case, a third person gave Y documentary evidence that C had committed perjury while X represented C, and that X had been advised of the perjury and had disregarded that advice. Y did not receive the evidence from a confidential source or during his representation of C. The committee was asked whether Y or X should call on C to rectify the perjury and whether either could disclose it to opposing counsel, the court, or the State Bar.

Treating the information as a former client's secret under California Business and Professions Code section 6068(e), the committee concluded that Y must respect C's secret and could not communicate it to X. Because the attorney-client relationship with C had ended, Y had no duty to call on C to rectify the perjury, though he could do so without violating the confidentiality rule. The committee found no authority permitting disclosure of client perjury to opposing counsel, citing Hinds v. State Bar, and concluded Y could not contact the State Bar about X, because doing so would necessarily disclose C's secrets.

For X, who continued as C's attorney of record, the committee identified competing duties of loyalty and prevention of fraud on the court. It concluded that X should call on C to rectify the perjury, but if C refused, X should not disclose the perjury to the court. The committee noted a split of authority on X's proper course and favored continued vigorous representation as if the perjury had not occurred, provided prejudice to C is avoidable, while both schools of thought agreed X should not disclose the perjury to the court. It emphasized that California's crime exception is narrow and does not extend to preventing an intended civil fraud.

Currency note

This opinion was issued in 1980, before California adopted the former Rules of Professional Conduct (effective 1989) and before the current rules that follow the ABA Model Rules format (effective November 1, 2018). It interpreted former California Rule 7-105, Business and Professions Code section 6068, Evidence Code section 956, and provisions of the ABA Code of Professional Responsibility. California's confidentiality statute and its candor rules have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

View original opinion

Common questions

Q: Did the former lawyer have to report the client's suspected perjury?

A: Per the opinion, no. Because the representation had ended, the committee concluded the former lawyer had no duty to call on the client to rectify the perjury and could not disclose it to the court, opposing counsel, or the State Bar.

Q: Could the former lawyer report the conduct of the client's current lawyer to the State Bar?

A: Per the opinion, no. The committee concluded that reporting X to the State Bar would necessarily disclose the client's secrets, so it was barred.

Q: What should the client's current lawyer do about the perjury?

A: Per the opinion, call on the client to rectify it; but if the client refuses, the current lawyer should not disclose the perjury to the court, and the committee favored continued representation as if it had not occurred, with reasonable steps to avoid prejudice to the client.

Background and rules framework

The opinion predates the numbered California rules. It interpreted former California Rule 7-105, California Business and Professions Code section 6068 (including subdivisions (d) and (e)), California Evidence Code section 956, and the ABA Code of Professional Responsibility (DR 4-101, DR 7-102, DR 7-105). Those authorities map to today's confidentiality rule (Model Rule 1.6; California Rule 1.6) and the candor-to-the-tribunal rule (Model Rule 3.3). The committee's central holding was that, in California, the duty of confidentiality took priority over disclosure of a client's perjury.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Former California Rule 7-105
• ABA Code of Professional Responsibility, DR 4-101, DR 7-102, DR 7-105; ABA Canon 29

Statutes:

• California Business and Professions Code section 6068
• California Evidence Code section 956

Cases:

• Hinds v. State Bar, 19 Cal.2d 87 (1943)
• Abbott v. Superior Court, 78 Cal.App.2d 19 (1947)
• People v. Singh, 123 Cal.App. 365 (1932)

Other opinions cited:

• ABA Formal Opinions 23, 202, 216, 268, 287; LACBA Opinions 264, 267, 271, 274, 305; Oregon Opinion 289

See also

• LACBA Ethics Op. 466: Disclosure of Evidence of Crime Received From a Client
• LACBA Ethics Op. 531: Evidence From an Opposing Party's Former Employee
• LACBA Ethics Op. 264: Disclosing Client Confidences to Prevent a Crime
• LACBA Ethics Op. 274: Confidential Communications and Client Files

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2011005