If a lawyer learns a client filed court documents under an alias, must the lawyer correct the record despite confidentiality?

Plain-English summary

The opinion addresses a lawyer in a workers' compensation action who learns that the client, an undocumented worker, has been using an alias under which the court documents were filed. The question is what the lawyer must do given the competing duties of confidentiality and candor to the tribunal.

The opinion starts from Rule 1.6(a), which bars revealing information acquired in the professional relationship unless the client consents, disclosure is impliedly authorized, or a Rule 1.6(b) exception applies; one exception, Rule 1.6(b)(1), permits disclosure the lawyer reasonably believes necessary to comply with the Rules. It then turns to Rule 3.3(a)(1), which bars knowingly making a false statement of material fact to a tribunal and requires correcting a prior false statement of material fact. Whether the lawyer must breach confidences to correct the filings depends on whether the documents contain a false statement of material fact.

The opinion concludes that turns on whether the client's name is material to the workers' compensation action, which it treats as a legal question outside its purview. It notes the Workers' Compensation Act covers aliens whether lawfully or unlawfully employed (N.C.G.S. 97-2), so the client's undocumented status arguably would not affect the right to compensation, though credibility issues may bear on the action. Before taking any remedial measures, the lawyer should advise the client of the duty of candor and seek the client's cooperation in correcting the filings. Separately, and regardless of materiality, the lawyer may not offer evidence the lawyer knows to be false under Rule 3.3(a)(3), so the lawyer may not introduce any evidence (including the client's own testimony) that the alias is the client's true name (citing RPC 33). If the client will not agree to those terms of continued representation, the lawyer must seek to withdraw under Rule 1.16.

In practice

Under the North Carolina rules as they stood at the time of the opinion, the duty to correct the filed documents arises under Rule 3.3 only if the client's name is a material fact in the workers' compensation action, which the committee treats as a legal question it will not resolve. Per the opinion, where correction is required, Rule 1.6(b)(1) supplies the confidentiality exception that permits the necessary disclosure, and the lawyer should first advise the client of the duty of candor and seek the client's cooperation.

Per the opinion, materiality does not affect the separate duty not to offer false evidence: the lawyer may not introduce any evidence, including the client's testimony, that the alias is the client's true name (Rule 3.3(a)(3)), and must seek to withdraw under Rule 1.16 if the client will not agree to continue on those terms.

Common questions

Q: Must a lawyer tell the court a client used a fake name on the filings?

A: Only if the name is material. The opinion concludes Rule 3.3 requires correcting a prior false statement of material fact, so the duty to correct arises only if the client's name is material to the action, which is a legal question the committee does not decide.

Q: Doesn't confidentiality bar the lawyer from disclosing the real name?

A: Not when correction is required. The opinion concludes that if the lawyer must correct the filings to comply with Rule 3.3, the Rule 1.6(b)(1) exception permits the disclosure reasonably necessary to comply with the Rules.

Q: Can the lawyer keep presenting the case using the alias as the client's name?

A: No. The opinion concludes that, regardless of materiality, the lawyer may not offer evidence known to be false, including the client's own testimony that the alias is the true name (Rule 3.3(a)(3)).

Q: What if the client won't cooperate in correcting the record?

A: The lawyer must seek to withdraw. The opinion concludes that if the client cannot agree to the lawyer's proposed terms of continued representation, the lawyer must seek to withdraw under Rule 1.16, after first advising the client of the duty of candor.

Background and rules framework

The opinion applies North Carolina Rule 1.6 (confidentiality of information, including the Rule 1.6(b)(1) exception for disclosure necessary to comply with the Rules), Rule 3.3 (candor toward the tribunal, including the duty to correct a prior false statement of material fact and the bar on offering false evidence), and Rule 1.16 (declining or terminating representation). These track Model Rules 1.6, 3.3, and 1.16. The analysis turns on the materiality of the client's name, which the committee leaves as a legal question.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NC Rule 1.6(a), 1.6(b)(1) (confidentiality; exception for disclosure necessary to comply with the Rules)
• MR 3.3 / NC Rule 3.3(a)(1), 3.3(a)(3) (candor to the tribunal; correcting false statements; not offering false evidence)
• MR 1.16 / NC Rule 1.16 (withdrawal from representation)

Statutes:

• N.C.G.S. 97-2 (Workers' Compensation Act covers aliens whether lawfully or unlawfully employed)

Other opinions cited:

• NC RPC 33: a lawyer may not offer or use evidence the lawyer knows to be false.

See also

• ABA Formal Op. 93-376: Client Lies in Discovery
• ABA Formal Op. 98-412: Disclosure When a Client Violates a Court Order

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2008-formal-ethics-opinion-1/

Original opinion text

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

Inquiry:

In a workers' compensation action, what duties does a lawyer have to the court if the lawyer learns that his client, who is an undocumented worker, has been using an alias and that the court documents have been filed under the alias rather than the client's legal name?

Opinion:

The protection of client confidences is one of the most significant responsibilities imposed on a lawyer. Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. One of the exceptions set out in Rule 1.6(b) allows a lawyer to reveal confidential information to the extent the lawyer reasonably believes necessary to comply with the Rules of Professional Conduct. Rule 1.6(b)(1).

Rule 3.3(a)(1) prohibits a lawyer from knowingly making a false statement of material fact to a tribunal and requires a lawyer to correct any false statement of material fact previously made. Whether a lawyer has a duty under Rule 3.3 that would require the lawyer to breach a client's confidences to correct previously filed court documents depends on whether the documents contain false statements of material fact.

If the client's name is an issue of material fact in the workers' compensation action, then the lawyer has a duty to correct the filed court documents. The North Carolina Workers' Compensation Act applies to "every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and also minors, whether lawfully or unlawfully employed." N.C.G.S. §97-2. Arguably, the fact that the lawyer's client is an undocumented worker would not affect the client's right to compensation under the Act. On the other hand, issues of credibility may affect the client's action. A determination of the materiality of the client's use of an alias in a workers' compensation action is a legal question outside the purview of the Ethics Committee.

Before taking any necessary remedial measures, the lawyer should advise the client of the lawyer's duty of candor to the tribunal and seek the client's cooperation with respect to the correction of the false statements in the filed court documents.

Materiality does not affect the lawyer's duty to refrain from offering false evidence in the future. Rule 3.3(a)(3) provides that a lawyer shall not offer any evidence that the lawyer knows to be false. Therefore, the lawyer would be prohibited from introducing any evidence in support of the proposition that the alias is the client's true name, including the client's own testimony. See RPC 33. If the client cannot agree to the lawyer's proposed terms of the continued representation, the lawyer must seek to withdraw from the action in accordance with Rule 1.16.