What must an appointed criminal defense lawyer do after learning the client lied about being indigent to get a court-appointed lawyer?

Plain-English summary

A court appointed a lawyer for a criminal defendant who had filed an affidavit claiming indigency. In discussions, the lawyer came to know that the client was not in fact indigent and knew that when he filed the affidavit. The lawyer asked what his responsibilities were toward the false affidavit.

The opinion treats the affidavit as material evidence given to a tribunal. It applies Rule 3.3(a)(4) (reasonable remedial measures when a client has offered false material evidence) and Rule 3.3(a)(2) (disclosure to avoid assisting a client's criminal or fraudulent act), reasoning that obtaining free legal services through a false indigency affidavit is fraudulent, and that submitting an invoice for compensation while knowing the client is not indigent would assist that fraud. It links Rule 3.3 to the more general Rule 1.2(d) (no assisting client crime or fraud) and Rule 4.1(b) (disclosure to third parties to avoid assisting a client's fraud).

The opinion then asks whether Rule 3.3(e), which sets a special procedure for a criminal defendant who intends to testify falsely, changes the analysis. It concludes Rule 3.3(e) does not apply, because the indigency affidavit is ancillary to guilt or innocence and a defendant has no absolute right to a free lawyer when not indigent. The general Rule 3.3 principles therefore govern: the lawyer must first urge the client to correct the affidavit. If the client refuses, the lawyer may not apply for compensation (that would assist the fraud) but may proceed without compensation, which the committee treats as rectifying the fraud. If the lawyer is unwilling to serve unpaid, he must seek to withdraw and disclose the fraud, using by analogy the Rule 3.3(e) procedure (an application to a judge other than the trial judge) to protect confidential information. The opinion reaffirms the committee's earlier Opinions 76-17 and 91-6.

In practice

Under the Massachusetts rules as they stood at the time of the opinion, the path the opinion sets out is sequential: urge the client to rectify the false affidavit first. The opinion holds that if the client refuses, the lawyer may not seek compensation, because billing the government while knowing the client is not indigent would assist the fraud.

The opinion holds that proceeding without compensation rectifies the fraud, so no further disclosure is required in that case. If the lawyer is unwilling to serve unpaid, the opinion holds he must seek to withdraw and disclose the fraud, following by analogy the Rule 3.3(e) procedure (application to a judge other than the trial judge, heard in camera) to limit disclosure of confidential information.

Common questions

Q: My appointed client lied about being indigent. Do I have to tell the court?

A: Not necessarily right away. The opinion holds you must first urge the client to rectify the affidavit. Whether you must disclose depends on what happens next: if you proceed without compensation, the committee treats the fraud as rectified and no disclosure is required; if you are unwilling to serve unpaid, you must withdraw and disclose the fraud.

Q: Can I still bill the state for my time?

A: The opinion concludes you may not. Submitting an invoice for compensation while knowing the client is not indigent would assist the client's fraud, contrary to Rule 3.3(a)(2).

Q: Does the special perjury procedure in Rule 3.3(e) apply here?

A: No. The opinion concludes Rule 3.3(e) is limited to a defendant's false trial testimony and does not reach a false indigency affidavit, which is ancillary to guilt or innocence.

Q: How do I limit what gets disclosed if I must withdraw?

A: The opinion advises following, by analogy, the Rule 3.3(e) procedure: move to withdraw before a judge other than the one assigned to the trial, and reveal only what is necessary, citing Purcell v. District Attorney on protecting client confidences.

Background and rules framework

The opinion interprets Massachusetts Rule of Professional Conduct 3.3 (candor toward the tribunal), including 3.3(a)(2), 3.3(a)(4), and the criminal-perjury procedure in 3.3(e), together with Rule 1.2(d) (no counseling or assisting client crime or fraud) and Rule 4.1(b) (disclosure to third parties to avoid assisting fraud). Special Massachusetts Comment 2A to Rule 3.3 addresses what "assisting" means before a tribunal. These correspond to the like-numbered ABA Model Rules.

Citations and references

Rules of Professional Conduct:

• MR 3.3 / Mass. R. Prof. C. 3.3 (candor to the tribunal; 3.3(a)(2), 3.3(a)(4), 3.3(e), Comment 2A)
• MR 1.2(d) / Mass. R. Prof. C. 1.2(d) (no assisting client crime or fraud)
• MR 4.1(b) / Mass. R. Prof. C. 4.1(b) (disclosure to avoid assisting fraud)

Cases:

• Commonwealth v. Mitchell, 438 Mass. 535 (2003), "firm basis in fact" standard of knowledge
• Purcell v. District Attorney, 424 Mass. 109 (1997), protecting client confidences

Other opinions cited:

• MBA Opinions 76-17 and 91-6 (reaffirmed): a lawyer must withdraw and disclose, or serve without compensation, when a client files a false indigency affidavit

See also

• ABA Ethics Op. 98-412: disclosure when a client violates a court order
• ABA Ethics Op. 06-439: truthfulness in negotiation and mediation
• MA Bar Ethics Op. 11-01: withdrawal and an escrow the lawyer cannot complete

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2011-opinion-11-02/opinion-11-02