If a client admits he lied under oath in a verified complaint and deposition, is dismissing the case enough, or must the lawyer do more after the client perjured himself?

Plain-English summary

The opinion addressed a lawyer representing a husband in a divorce-from-bed-and-board action. The complaint, verified by the husband, affirmatively alleged that he had been a dutiful and faithful husband and that the wife's conduct occurred without just cause or provocation. At his deposition, asked whether he had committed adultery, the husband denied it. Afterward he told his lawyer that he had lied in both the complaint and the deposition and had in fact committed adultery. The lawyer advised that the action had to be dismissed for lack of grounds, the husband consented, and the action was voluntarily dismissed without prejudice. No alimony claim based on the husband's adultery was then pending. The question was whether the lawyer had to take any further action regarding the false verified allegation and false deposition testimony.

The opinion concluded that the lawyer must do more. Rule 7.2(b)(1) requires a lawyer who receives information clearly establishing that a client has perpetrated a fraud on a person or a tribunal to call on the client to rectify the fraud, and, if the client refuses or is unable to do so, to discontinue the representation in the matter. The opinion concluded that the dismissal of the action was not sufficient to rectify the fraud on the wife, because in future proceedings the wife and her attorney might rely on the husband's false testimony. The lawyer therefore had to insist that the client rectify the fraud by allowing the lawyer to advise the wife's lawyer of the untruthful deposition response and the untruthful allegation in the verified complaint, and if the client refused, the lawyer had to withdraw from the representation.

Currency note

This opinion was issued in 1995, before the North Carolina State Bar's adoption of the 2003 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 Treat this page as historical context, not current guidance.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: If a client perjures himself but the case is dismissed, is the lawyer's duty satisfied?

A: No. The opinion concluded that dismissing the action did not rectify the fraud on the opposing party, because she might later rely on the false testimony, so the lawyer's duty to act continued.

Q: What must the lawyer do after learning of the client's perjury?

A: Call on the client to rectify the fraud. The opinion concluded the lawyer must insist that the client allow disclosure of the false deposition answer and verified allegation to opposing counsel under Rule 7.2(b)(1).

Q: What if the client refuses to rectify the fraud?

A: The lawyer must withdraw. The opinion concluded that if the client refuses to rectify the fraud, the lawyer must withdraw from the representation.

Background and rules framework

The opinion applied North Carolina's then-current Rule 7.2(b)(1), requiring a lawyer to call on a client to rectify a fraud clearly established and to discontinue the representation if the client refuses; that duty corresponds to Model Rule 3.3 on candor toward the tribunal and to the fraud-rectification limits on Model Rule 1.6 confidentiality. The opinion's editor's note points readers to Rule 3.3(a)(4) for additional guidance.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal)
• MR 1.6 (confidentiality; fraud rectification)
• North Carolina Rule 7.2(b)(1)

See also

• NC Ethics Op. 2003 FEO 5: misrepresentation of prior record at sentencing
• NC Ethics Op. RPC 223: responsibility to a client who has disappeared

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-203/

Original opinion text

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

Editor's Note: See Rule 3.3(a)(4) for additional guidance.

Inquiry:

Lawyer A represents Client H in a domestic dispute with his wife, W. Client H told Lawyer A that there was physical violence and verbal abuse in the marriage because of the actions of W and that any acts on his part were provoked. Client H wanted to move out of his house because of the abuse, and Lawyer A advised him concerning the requirements for filing a complaint for divorce from bed and board. Lawyer A recommended that a complaint alleging indignities, constructive abandonment, and cruel and unusual treatment by W should be filed shortly after separation. Lawyer A questioned Client H as to whether he had committed adultery during the marriage and advised Client H that a complaint for divorce from bed and board must contain an affirmative allegation that the actions alleged to have been perpetrated by W occurred without just cause or provocation. Client H informed Lawyer A that he had not committed adultery and that none of his acts were unprovoked.

Lawyer A filed a complaint for Client H seeking a divorce from bed and board against W based upon constructive abandonment and alleged indignities and cruel and unusual acts by W toward Client H. The complaint was verified by Client H and contained an affirmative allegation that he had been a dutiful and faithful husband.

W filed an answer denying the allegations in the complaint and seeking temporary and permanent alimony from Client H based upon allegations of physical abuse, other indignities, and failure to provide requisite support. There was no allegation in the answer that Client H had engaged in adulterous conduct.

The depositions of Client H and W were taken. At his deposition, Client H was asked whether he committed adultery during the marriage. Lawyer A objected to the question but did not instruct his client not to answer. Client answered by denying that he had committed adultery during the marriage. In conference with Lawyer A after the deposition, Client H advised Lawyer A that he had lied in his deposition and in the complaint and that he had, in fact, engaged in adultery during the marriage.

Lawyer A advised Client H that the action for divorce from bed and board must be dismissed because Client H did not have grounds for such an action. Client H consented and the action for divorce from bed and board was voluntarily dismissed without prejudice. There are no affirmative allegations currently pending seeking temporary or permanent alimony based upon the adultery of Client H. Must Lawyer A take any further action with regard to the false allegation in the verified complaint and the false testimony of Client H in his deposition?

Opinion:

Yes. Rule 7.2(b)(1) requires a lawyer who receives information clearly establishing that a client has perpetrated a fraud upon a person or upon a tribunal to call upon the client to rectify the fraud, and, if the client refuses or is unable to do so, the lawyer must discontinue his representation of the client in the matter. The dismissal of the divorce from bed and board action by Client H is not sufficient to rectify the fraud upon W because, in future proceedings, W and her attorney may rely upon his false testimony. Lawyer A must insist that his client rectify the fraud by allowing Lawyer A to advise W's lawyer of Client H's untruthful response in the deposition and the untruthful allegation in the verified complaint. If Client H refuses to rectify the fraud, Lawyer A must withdraw from his representation.