If a client admits during a deposition to committing perjury in another proceeding, must the client's lawyer and opposing counsel report it, and can they agree to stay silent in exchange for dismissal?

Plain-English summary

The Committee addressed a deposition in which the deponent/plaintiff admitted committing perjury in a bankruptcy proceeding in another state. The deponent's attorney then proposed to opposing counsel that the lawsuit be dismissed if opposing counsel and his client agreed not to report the perjury to prosecutors. The questions were whether the deponent's attorney had to report the perjury, and whether opposing counsel had to report it.

As to the deponent's own attorney, the opinion concluded the duty of loyalty is not absolute and that, in the rare case where a client has committed perjury before a tribunal, the attorney's obligation to the tribunal and the administration of justice comes first. It noted that it does not matter that the perjury occurred out of state or that the attorney is not admitted there. Applying Rule 3.3(a)(2) and its comment, the opinion concluded the attorney must first confidentially urge the client to disclose the perjury to the tribunal; if the client refuses, the attorney must withdraw and disclose the perjury to the tribunal. Failing to do so would assist the client's perjury and fraud, in violation of Rules 1.2(d), 1.6(b)(1), 1.16(b), 4.1(b), and 8.4(b), (c), and (d).

As to opposing counsel, the opinion concluded that although disclosure of representation information ordinarily requires the client's consent under Rule 1.6(a), here the disclosure is to a tribunal that has entertained perjury. The opinion concluded that opposing counsel's failure to disclose would assist in the commission of a crime in violation of Rule 8.4(b) and (c) and would be conduct prejudicial to the administration of justice under Rule 8.4(d). It acknowledged the client might prefer the dismissal deal, but concluded the integrity of the administration of justice outweighs the client's personal considerations and in fact benefits the client. The opinion concluded opposing counsel must disclose the perjury to the tribunal where it occurred and cannot agree not to disclose it.

Currency note

This opinion was issued in 1992, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but 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 that the lawyer's own client committed perjury?

A: The opinion concluded the lawyer must first urge the client to disclose the perjury to the tribunal and, if the client refuses, withdraw and disclose it, applying Rule 3.3(a)(2) and its comment.

Q: Does opposing counsel also have to report the perjury?

A: Per the opinion, yes; opposing counsel must disclose the perjury to the tribunal where it occurred, because failing to do so would assist a crime under Rule 8.4(b) and (c) and be prejudicial to the administration of justice under Rule 8.4(d).

Q: Can the lawyers agree to drop the case in exchange for staying silent about the perjury?

A: The opinion concluded no; opposing counsel cannot enter an agreement not to disclose the perjury, because the integrity of the administration of justice outweighs the client's preference for the dismissal deal.

Q: Does it matter that the perjury happened in another state's court?

A: The opinion concluded it is of no consequence that the tribunal was out of state, that the attorney was not admitted there, or that the attorney did not represent the client there.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 3.3(a)(2) (candor toward the tribunal; not failing to disclose a material fact when necessary to avoid assisting a client's crime or fraud) and ties the duties of both counsel to Rules 1.2(d) (no assisting crime or fraud), 1.6 (confidentiality), 1.16(b) (withdrawal), 4.1(b) (truthfulness to others), and 8.4(b), (c), and (d) (criminal acts, dishonesty, and conduct prejudicial to the administration of justice), which correspond to the same-numbered Model Rules.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 3.3(a)(2) (candor toward the tribunal) (cf. Model Rule 3.3)
• MRPC 1.2(d) (no assisting crime or fraud) (cf. Model Rule 1.2)
• MRPC 1.6 (confidentiality) (cf. Model Rule 1.6)
• MRPC 1.16(b) (withdrawal) (cf. Model Rule 1.16)
• MRPC 4.1(b) (truthfulness in statements to others) (cf. Model Rule 4.1)
• MRPC 8.4(b), (c), (d) (criminal acts; dishonesty; conduct prejudicial to the administration of justice) (cf. Model Rule 8.4)

See also

• MS Bar Ethics Op. 213: Reporting a Non-Client's Crime
• MS Bar Ethics Op. 221: Reporting Out-of-State UPL
• MS Bar Ethics Op. 220: Suing a Former Law Partner

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/205/
• Original PDF: https://www.msbar.org/media/1458/35a_et_op_205.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 205

OF THE MISSISSIPPI BAR

RENDERED October 30, 1992

CLIENT MISCONDUCT/ATTORNEY RESPONSIBILITY- An attorney is under an obligation to report the criminal misconduct of a nonclient which prejudices the administration of justice; the client's attorney is under an obligation to remonstrate with the client, and if unsuccessful, disclose the conduct to the tribunal.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following facts:

In the course of a deposition, the deponent/plaintiff admits to having committed perjury in a bankruptcy proceeding in another state. The deponent's attorney then proposes to counsel opposite to dismiss the lawsuit if opposing counsel and his client agree not to report the admissions of perjury to prosecutorial authorities.

The Ethics Committee has been requested to opine as to (1) whether the deponent's attorney has any obligation to report the perjury, and if so, to whom; and (2) whether opposing counsel has any obligation to report the deponent's perjury, and if so, to whom.

An attorney's obligation of loyalty and fidelity to a client is of the highest order, but it is not absolute. There are circumstances, while admittedly few, that nonetheless require an attorney to place the sacrosanct attorney-client relationship second to his obligation to the tribunal and the administration of justice.

In this instance, an attorney has become aware that his client has committed perjury in a tribunal. It is of no consequence that the tribunal in which the perjury was committed is out-of-state, or that the attorney may not be admitted to practice before that tribunal or that he may not represent the client in that tribunal. M.R.P.C. 3.3(a)(2) states that:

A lawyer shall not knowingly: (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. . . .

The Comment is specific in its admonition of the attorney's responsibility when he learns of his client's perjury.

If perjured testimony or false evidence has been offered, the advocate's proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation. If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the court. It is for the court then to determine what should be done. . . .

Furthermore, the failure of the attorney to address his client's perjury by convincing his client to take remedial steps, or by disclosing the perjury to the tribunal, in fact assists the client in both committing perjury and perpetrating a fraud on the tribunal and is in violation of the Mississippi Rules of Professional Conduct. M.R.P.C. 1.2(d); M.R.P.C. 1.6(b)(1); M.R.P.C. 1.16(b); M.R.P.C. 4.1(b); and M.R.P.C. 8.4(b), (c) and (d).

Therefore, it is the opinion of the Ethics Committee that the deponent's attorney is under an obligation first to counsel the deponent to disclose to the tribunal the perjury committed, and if the deponent refuses, it is then the obligation of the attorney to withdraw from representation and to report the perjury to the tribunal.

The obligation of opposing counsel to report the perjury of the deponent is also affected by consideration of his attorney-client relationship. Typically, the disclosure by the attorney of information relating to the representation requires informed consent of the client. M.R.P.C. 1.6(a). However, in the facts before the Committee, the disclosure being considered is that of informing a tribunal that it has entertained perjury. Again, the failure of opposing counsel to disclose to the tribunal the existence of perjury would place the attorney in the position of assisting in the commission of a crime in violation of M.R.P.C. 8.4(b) and (c). It is also the opinion of the Ethics Committee that the failure of opposing counsel to report perjury to the tribunal is a violation of M.R.P.C. 8.4(d), which states that It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice...

The Committee recognizes that the client of opposing counsel may not think it to be in his best interest to refuse to enter into an agreement which would result in the dismissal of the lawsuit pending against him. However, the clear dictates of the Mississippi Rules of Professional Conduct and the necessity to protect the integrity of the administration of justice outweigh the personal considerations of the client, and in fact inure to the client's benefit by ensuring the client of the same nonprejudicial administration of justice in the various tribunals in which the client may appear.

Therefore, it is the opinion of the Ethics Committee that opposing counsel must disclose the deponent's perjury to the tribunal in which it was committed, and therefore cannot enter into an agreement in which the attorney agrees not to disclose perjury.

The Committee recognizes and points out that there are legal obligations which may be imposed on both counsel concerning which this Committee cannot opine.