What must a lawyer in a civil case do after a client admits committing perjury during depositions?

Plain-English summary

In a civil case, a client produced a document and authenticated it under oath at his deposition, then later told his lawyer he had known all along it was not authentic. The document was not the subject of the suit but was relevant to a material issue. The lawyer thought he could continue without using the document, but the client's other testimony would be needed at trial, and the lawyer did not know whether opposing counsel would use the document. No trial date was set and discovery was open. The lawyer asked whether he was permitted or required to disclose that the document was not authentic. The committee stressed the inquiry concerned civil litigation only and that the criminal answer might differ.

The committee analyzed DR 4-101(C)(3) (discretion to reveal a client's intent to commit a crime and information needed to prevent it) and DR 7-102(B)(1) (mandatory duty to reveal a client's fraud on a person or tribunal, except privileged communications). It distinguished its earlier Opinion 76-6 (where the trial was over and the crime could no longer be prevented) because here the case was still in discovery, giving the perjury a possible "double aspect": a completed past crime, and a possible future crime (repeated perjury at trial, or obtaining a judgment or settlement by fraud, or criminal contempt). If the lawyer is aware of an intent to repeat the perjury, the committee said, the lawyer has discretion under DR 4-101(C)(3) to reveal it, and that discretion is not lost merely because revealing the future intent also reveals the past perjury, using the analogy of a pharmacist-client who has already poisoned medicine bottles not yet sold. Long-settled privilege law treats the intent to commit crime or fraud as not privileged.

On DR 7-102(B)(1), the committee concluded that perjury in an ongoing civil suit is "fraud" on a person or tribunal, so the lawyer must reveal it unless the information is "protected as a privileged communication." Reviewing the tangled history of the rule and ABA Formal Opinion 341, the committee held that information the lawyer has discretion to reveal under DR 4-101(C)(3) is not "protected as a privileged communication," so where DR 4-101(C)(3) applies, DR 7-102(B)(1) converts the optional disclosure into a mandatory one. The lawyer's first obligation is to try to get the client to rectify the perjury. If, after reflection, the lawyer concludes there is no intended future crime, the past perjury stays protected and may not be disclosed, but the lawyer may not proceed normally either: pursuing litigation knowing the client falsely authenticated a material document would violate DR 7-102(A)(7), so the lawyer must at least withdraw. The committee urged the Supreme Judicial Court to address the perjury problem explicitly and said no lawyer should be disciplined for choosing any of the defensible positions until the court speaks with finality.

Currency note

This opinion was issued in 1989, before Massachusetts's adoption of the 2015 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: Must a lawyer disclose a civil client's deposition perjury?

A: The committee concluded disclosure is mandatory under DR 7-102(B)(1) only where the lawyer knows the client intends to repeat the perjury or to commit another crime through it (which makes the information non-privileged under DR 4-101(C)(3)) and the client refuses to rectify it.

Q: What if the client intends no further crime?

A: Then the past perjury stays protected and the lawyer must not disclose it, but the lawyer also cannot proceed normally; continuing while knowing the client falsely authenticated a material document would violate DR 7-102(A)(7), so the lawyer must at least withdraw.

Q: Does revealing future intent improperly expose the past perjury?

A: The committee said no. The discretion under DR 4-101(C)(3) to reveal a client's intent to commit a crime is not lost because the disclosure also reveals the related past crime, since the intent to commit crime or fraud is not privileged.

Background and rules framework

The opinion interpreted DR 4-101(C)(2) and (3) and DR 7-102(B)(1), with DR 7-102(A)(4) and (7) and DR 1-102(A)(5) in support. Those provisions correspond today to Model Rule 3.3 (candor to the tribunal, including the duty to remedy false evidence) and Model Rule 1.6 (confidentiality and its crime-fraud exceptions); withdrawal is governed by Model Rule 1.16. The committee noted the Massachusetts rules then in force did not address client perjury as clearly as the (unadopted) Model Rules, citing MR 3.3(a)(2), (4) and (b).

Citations and references

Rules of Professional Conduct:

• DR 7-102(B)(1) / Model Rule 3.3(a) (revealing a client's fraud on a person or tribunal)
• DR 4-101(C)(3) / Model Rule 1.6(b) (discretion to reveal intent to commit a crime)
• DR 7-102(A)(7) (not assisting illegal or fraudulent conduct; basis for withdrawal)

Statutes:

• 18 U.S.C. 1341, 1343 (mail and wire fraud, noted as possible future crimes)

Cases:

• Commonwealth v. Dyer, 243 Mass. 472 (1923); Nix v. Whiteside, 475 U.S. 157 (1986); In re Mahlowitz, 1 Mass. Atty. Disc. Rep. 189 (1979); Blankenburg v. Commonwealth, 260 Mass. 369 (1927)

Other opinions cited:

• ABA Formal Opinion 341 (1975); ABA Informal Opinion 1314 (1975); ABA Opinion 87-353 (1987); MBA Opinions 76-6, 76-17, 76-28, 77-12, 78-9

See also

• MA Bar Ethics Op. 91-4: A criminal client's lies to a probation officer and the duty to disclose
• MA Bar Ethics Op. 90-1: Warning authorities of a planned murder of a witness
• MA Bar Ethics Op. 93-2: Disclosing a former client's alleged fraud

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-1989-opinion-no-89-1/opinion-no-89-1