Can a lawyer disclose that a former or prospective client used the lawyer's advice to commit a fraud on a court?
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This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
A person consulted an attorney about bankruptcy and described assets that the attorney said were non-exempt; the person did not retain the attorney. The attorney later saw the same person in bankruptcy court telling the trustee she owned none of those assets. The Committee addressed what the attorney may or must do.
On confidentiality, SCR 156 (now Rule 1.6) protects information relating to the representation, and the Committee, relying on ABA Formal Op. 90-358 and Todd v. State, found that information a prospective client shares is protected even if the attorney is never retained. But SCR 156(3)(a) permits (it does not require) disclosure to prevent or rectify the consequences of a client's criminal or fraudulent act in which the lawyer's services were used. Because the person used the attorney's advice to learn how to conceal assets from the next attorney and the court, the Committee treated the services as having been used in the fraud, making discretionary disclosure available (citing Sloan v. State Bar that the rule leaves disclosure to the lawyer's discretion).
The Committee directed that the attorney use the least harmful means: first try to persuade the client to correct the fraud, then disclose to the client's current attorney, and only as a last resort disclose to the court. It explained SCR 159(2) (now Rule 1.9) lets a lawyer act toward a former client as Rule 156 would permit, and that mere silence is not "concealment" of a felony under 18 U.S.C. 4. Finally, the Committee read SCR 172 (candor to the tribunal, now Rule 3.3) as not imposing an affirmative duty to disclose a former client's perjury, because SCR 159(2) (unlike ABA Model Rule 1.9(c)) omits any reference to the candor rule, suggesting the Nevada Supreme Court intended no such duty where the lawyer's services were not used in the perjury.
Currency note
This opinion was originally issued in 2001 and its conclusion was amended in 2007; it predates Nevada's 2006 adoption of the current Nevada Rules of Professional Conduct (the renumbered Rules 1.0 et seq. that replaced the former Supreme Court Rules) and the related Ethics 2000-based revisions. The confidentiality rule is now Rule 1.6, the duties to former clients are now Rule 1.9, and candor to the tribunal is now Rule 3.3; the current Rule 1.6 and Rule 3.3 differ in important respects from the former rules analyzed here. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.
Common questions
Q: Is information from someone who consulted a lawyer but never hired them confidential?
A: Yes. The opinion concluded, following ABA Formal Op. 90-358 and Todd v. State, that information a prospective client shares is protected by SCR 156 even if the lawyer is never retained.
Q: Must the lawyer report the former client's fraud on the court?
A: No. The opinion concluded disclosure under SCR 156(3)(a) is discretionary, not mandatory, and that SCR 172's candor duty does not require disclosing a former client's perjury where the lawyer's services were not used in it.
Q: If the lawyer does disclose, in what order?
A: Per the opinion, the lawyer should use the least harmful means: first try to persuade the client to correct the fraud, then disclose to the client's current attorney, and only as a last resort disclose to the court.
Background and rules framework
The opinion interprets former SCR 156 (confidentiality, now Rule 1.6), former SCR 159 (duties to former clients, now Rule 1.9), and former SCR 172 (candor toward the tribunal, now Rule 3.3), reading the Nevada rules against their ABA Model Rule analogues and the federal misprision statute.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.6 / former Nev. SCR 156 (confidentiality of information)
- Model Rule 1.9 / former Nev. SCR 159 (duties to former clients)
- Model Rule 3.3 / former Nev. SCR 172 (candor toward the tribunal)
Statutes:
- 18 U.S.C. 4 (misprision of felony); 18 U.S.C. 152 (bankruptcy fraud); Nev. Rev. Stat. 199.120 (perjury)
Cases:
- Sloan v. State Bar, 102 Nev. 436, 726 P.2d 330 (1986) (disclosure of client fraud is discretionary)
- Todd v. State, 113 Nev. 18, 931 P.2d 721 (1997) (attorney-client relationship implied from consultation)
- Lewis v. Statewide Grievance Committee, 669 A.2d 1202 (Conn. 1996) (general legal advice is not aiding a fraud)
Other opinions cited:
- ABA Formal Op. 90-358 (1990) (prospective-client information is protected)
See also
- NV Ethics Op. 10: a lawyer holding the proceeds of a client's crime
- NV Ethics Op. 9: insurance defense counsel and the insured's disclosure of fraud
Source
- Landing page: https://nvbar.org/for-lawyers/ethics-discipline/ethics-opinions/
- Original PDF: https://nvbar.org/wp-content/uploads/opinion_25.pdf
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