If a lawyer learns that a prior discovery response was wrong because the client actually has responsive documents, can the lawyer disclose that over the client's objection?

Plain-English summary

A lawyer represented the chief executive of a corporate defendant in a federal civil action. After the client said the corporation had produced all responsive documents to a government agency and kept no copies, the lawyer told the plaintiff that neither his client nor the corporation possessed any documents called for by the plaintiff's request. The lawyer later learned from the client that several boxes of responsive documents had been stored with a third person. When the lawyer said the plaintiff should be told, the client instructed him not to disclose, claiming the information was a confidential attorney-client communication. The lawyer asked whether the information was confidential and, if so, whether he could disclose it.

On the first question, the committee explained that the Code protects both "confidences" (information protected by the attorney-client privilege) and "secrets" (other information gained in the professional relationship whose disclosure would embarrass or harm the client). Whether the information was privileged was a question of law the committee did not decide, but it concluded the information was plainly a "secret" under DR 4-101(A).

On disclosure, the committee held that although DR 4-101(B) generally bars revealing secrets, DR 4-101(C)(2) permits disclosure when "required by law or court order." It concluded that obligations imposed by the Federal Rules of Civil Procedure, including Rule 26(e)(2)'s duty (extended by the 1970 Advisory Committee Note to a lawyer with actual knowledge that a prior response is incorrect) to correct an inaccurate discovery response, are "required by law" because the Federal Rules have the force of law. Accordingly, if the lawyer concluded he had actual knowledge that his prior response was inaccurate, he may disclose the documents' existence to the plaintiff. The committee noted a then-proposed DR 4-101(C)(5) would give an independent basis to withdraw a representation found to rest on materially inaccurate information, and that DR 7-102(B)(1) (rectifying a client's fraud) would neither require nor preclude disclosure here because the information was protected as a secret.

On continued representation, the committee concluded that DR 7-102(A)(3) bars a lawyer from concealing or failing to disclose what he is "required by law" to reveal; so a lawyer who concludes Rule 26(e) requires correction but is forbidden by the client to disclose would have to withdraw under DR 2-110(B)(2), and continued representation could also implicate DR 7-102(A)(7) (assisting illegal or fraudulent conduct). Withdrawal must comply with DR 2-110(A)'s steps to avoid foreseeable prejudice to the client.

Currency note

This opinion was issued in 1990, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. Confidentiality and its exceptions are now governed by Rule 1.6, candor toward a tribunal by Rule 3.3, and withdrawal by Rule 1.16. 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: Is a court rule like Federal Rule 26(e) "required by law" for confidentiality purposes?

A: The committee concluded yes; obligations imposed by the Federal Rules of Civil Procedure are "required by law" within DR 4-101(C)(2) because the Rules have the force of law.

Q: Can a lawyer disclose a client secret to correct a prior discovery response?

A: The committee concluded that if the lawyer has actual knowledge his prior document-request response was inaccurate, he may disclose the documents' existence under DR 4-101(C)(2), even though the information is a secret.

Q: What if the client orders the lawyer not to disclose?

A: The committee concluded that DR 7-102(A)(3) bars concealing what the lawyer is required by law to reveal, so a lawyer who concludes Rule 26(e) requires correction must withdraw under DR 2-110(B)(2) if the client forbids disclosure.

Q: Does the lawyer have to first conclude the client committed fraud?

A: The committee concluded no; whether the conduct is fraudulent is a mixed law-and-fact question outside its jurisdiction, and the disclosure permission under DR 4-101(C)(2) does not depend on a fraud finding.

Background and rules framework

The opinion applied New York Code DR 4-101(A)-(C) (confidences, secrets, and exceptions), DR 7-102(A)(3) and (7) (failing to disclose what law requires; assisting illegal or fraudulent conduct), DR 7-102(B)(1) (rectifying a client's fraud), and DR 2-110(A) and (B)(2) (withdrawal), against Federal Rule of Civil Procedure 26(e). These correspond to ABA Model Rule 1.6 (confidentiality) and Model Rule 3.3 (candor toward the tribunal), with Rule 1.16 governing withdrawal.

Citations and references

Rules of Professional Conduct:

• New York Code DR 4-101(A)-(C)(2), DR 7-102(A)(3), DR 7-102(A)(7), DR 7-102(B)(1), DR 2-110(A), DR 2-110(B)(2); EC 7-6 (applied in the opinion)
• MR 1.6 (confidentiality); MR 3.3 (candor toward the tribunal)

Statutes and rules:

• Fed. R. Civ. P. 26(e) (duty to supplement and correct discovery responses)

Cases:

• In re Grievance Committee of the U.S. District Court, District of Connecticut, 847 F.2d 57 (2d Cir. 1988), actual knowledge clearly establishing fraud
• Dorsey v. City of Detroit, 858 F.2d 336 (6th Cir. 1988), counsel's duty to correct discovery

Other opinions cited:

• N.Y. State 480 (1977); ABA Informal Op. 1379 (1976): the knowledge standard for disclosing fraud

See also

• NYC Bar Formal Op. 1989-1: A Client's Interception of an Adversary's Privileged Communications
• NYC Bar Formal Op. 1990-3: Mandatory Reporting of Another Lawyer's Misconduct

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1990-2/