Must a criminal defense lawyer disclose that the client lied to a probation officer during the presentence investigation?
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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
An assigned lawyer represented a federal criminal defendant who pleaded guilty. After the change-of-plea hearing, the client told the lawyer that the name under which he was indicted was not his real one: he had used a new identity, including a new social security identity, for a decade to avoid deportation, and he had lied to the probation officer about details of his personal history during the presentence investigation. The client instructed the lawyer to make no disclosure. The lawyer asked what his obligation was.
The committee first held it could advise on the federal matter, because the federal district court had adopted the Massachusetts rules of professional conduct as its disciplinary standard. It then concluded that the client's lies to the probation officer were a "fraud on a tribunal" under DR 7-102(B)(1), since they obstructed the officer's sentencing investigation on the court's behalf. Building on its civil-perjury Opinion 89-1, the committee reasoned that where the client's lies amount to a continuing effort to obtain a lighter sentence and that effort is itself a crime, the information is not "privileged" within the DR 7-102(B)(1) exception, because DR 4-101(C)(3) gives the lawyer discretion to reveal a client's intent to commit a future crime. Whether obtaining a lighter sentence by lying is a crime is a question of substantive law the committee was barred from deciding, but if it is, disclosure becomes mandatory once the client refuses to rectify the fraud.
The committee engaged a published critique by former bar counsel Daniel Klubock, who argued the lawyer should withdraw without disclosing, and explained why it read the rules to point toward disclosure of fraud on the court. It added a Fifth Amendment caution carried over from Opinion 89-1: the lawyer must decide whether the privilege-against-self-incrimination issue is a serious one, and if so must raise it and obtain an authoritative ruling before disclosing. Finally, the committee held that if the conduct was not a crime, continuing the representation would involve the lawyer in violating DR 7-102(A)(4) or (7), so the lawyer would have to seek the court's permission to withdraw under DR 2-110(B)(2).
Currency note
This opinion was issued in 1991, 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: Were the client's lies to the probation officer a fraud on a tribunal?
A: Yes. The committee concluded the lies obstructed the probation officer's sentencing investigation, which the officer conducted on the court's behalf, so they constituted a fraud on a tribunal under DR 7-102(B)(1).
Q: When did the committee say disclosure became mandatory?
A: When the client's effort to obtain a lighter sentence by lying is itself a crime. In that case the information is not "privileged" under DR 7-102(B)(1), and disclosure is mandatory once the client refuses to rectify the fraud.
Q: What if the conduct was not a crime?
A: The committee said continuing would involve the lawyer in violating DR 7-102(A)(4) or (7), so the lawyer would have to seek the court's permission to withdraw under DR 2-110(B)(2).
Q: Did the committee resolve the Fifth Amendment objection to disclosure?
A: No. The committee said it could not address substantive law, but it advised the lawyer to decide whether the self-incrimination issue was serious and, if so, to raise it and obtain an authoritative ruling before making any disclosure.
Background and rules framework
The opinion applied DR 7-102(B)(1) (duty to reveal a client's fraud on a tribunal, except for privileged communications), DR 4-101(C)(3) (discretion to reveal a client's intent to commit a crime), DR 7-102(A)(4) and (7) (not using false evidence or assisting illegal or fraudulent conduct), and DR 2-110(B)(2) (mandatory withdrawal). These correspond today to Model Rule 3.3 (candor to the tribunal), Model Rule 1.6 (confidentiality and its crime-fraud exceptions), and Model Rule 1.16 (withdrawal). The committee noted that the more recent Model Rules, MR 3.3(a)(2) and (4) and the Comment, supported its reading, while observing those rules had not been adopted in Massachusetts.
Citations and references
Rules of Professional Conduct:
- DR 7-102(B)(1) / Model Rule 3.3(a) (revealing a client's fraud on a tribunal)
- DR 4-101(C)(3) / Model Rule 1.6 (discretion to reveal intent to commit a crime)
- DR 7-102(A)(4), (7) (false evidence; assisting illegal or fraudulent conduct)
- DR 2-110(B)(2) / Model Rule 1.16 (mandatory withdrawal)
- SJC Rule 3:08, Defense Function 13b (perjury in criminal cases; found not controlling)
Cases:
- Fisher v. United States, 426 U.S. 391 (1976) (cited on the self-incrimination question)
Other opinions and authorities cited:
- MBA Opinion 89-1 (mandatory disclosure of client perjury in a civil proceeding)
- Daniel Klubock, Commentary, 17 Mass. Lawyers Weekly 977 (1989)
- M. Freedman, Understanding Lawyers' Ethics (1990)
See also
- MA Bar Ethics Op. 93-2: Disclosing a former client's alleged fraud
- MA Bar Ethics Op. 91-6: Appointed counsel when an indigent client gets money
Source
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