Must a lawyer report an adverse party's perjury committed in an earlier case the lawyer had no part in, when reporting would hurt the lawyer's client?

Plain-English summary

A lawyer received information clearly establishing that an adverse party had committed perjury in a prior proceeding in which neither the lawyer nor his client was involved, and the lawyer believed revealing it would not serve his client's interest. The committee construed DR 7-102(B)(2), which states that a lawyer who receives information clearly establishing that a non-client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal. Although that text is unqualified as to the source of the information and the proceeding involved, the committee read it with two significant qualifications.

First, reading DR 7-102(B)(2) in light of its purpose and its structural relationship to DR 7-102(B)(1) (which addresses fraud by a client), the committee concluded that subdivision (2) should apply only to fraud committed in a proceeding where the lawyer's services were or are employed. Since subdivision (1) had been read to reach only frauds committed in the course of the representation (citing N.Y. State 466 (1977)), the same precondition should be implied for subdivision (2). Because neither the lawyer nor his client took part in the prior proceeding, the mandatory disclosure provisions did not apply.

Second, the committee addressed the tension between Canon 7 (zealous representation) and Canon 4 (confidences and secrets), noting that New York's House of Delegates had amended DR 7-102(B)(1) in 1976 to except information protected as a confidence or secret. It reasoned that since a lawyer's duty to correct a non-client's fraud is of lesser magnitude than the duty regarding a client's fraud, it would be anomalous to require disclosure of client-detrimental information under subdivision (2) when subdivision (1) carries the confidence-or-secret exception. The adversary's perjury, while not a client confidence, could be a "secret" to the extent its disclosure would likely be detrimental to the client (DR 4-101(A); EC 4-4). The question was answered in the negative.

Currency note

This opinion was issued in 1980, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (candor toward the tribunal, including remedying false evidence, now appears at Rule 3.3, and confidentiality at Rule 1.6). New York's current Rule 3.3 treatment of fraud on a tribunal differs in important respects from the 1980 Code provisions discussed here. 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 report an opposing party's perjury from an earlier, unrelated case?

A: No. The committee held DR 7-102(B)(2) applies only to fraud in a proceeding where the lawyer's services were employed, and the lawyer here was not involved in the prior proceeding.

Q: What if reporting the perjury would hurt the lawyer's own client?

A: The committee held the lawyer need not report it where disclosure would be detrimental to the client, treating that information as a protected "secret" subject to the same exception that applies to a client's own fraud.

Q: Doesn't the rule's text require reporting a fraud on a tribunal?

A: Its literal text is unqualified, but the committee read in two limits from the rule's purpose and its structural relationship to the client-fraud provision in DR 7-102(B)(1).

Background and rules framework

The opinion applied DR 7-102(B)(1) and (2) (rectifying fraud by a client and by a non-client), DR 4-101(A) (definition of confidence and secret), and DR 1-103(A), under Canons 4 and 7 and EC 4-4 and EC 7-19. The closest current Model Rule analogues are Rule 3.3 (candor toward the tribunal) and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal)
• MR 1.6 (confidentiality)
• NY Canon 4, Canon 7, EC 4-4, EC 7-19, DR 1-103(A), DR 4-101(A), DR 7-102(B)(1), DR 7-102(B)(2)

Other opinions cited:

• N.Y. State 466 (1977): fraud "in the course of the representation"
• N.Y. State 479 (1978), 454 (1976): balancing Canon 4 and Canon 7
• ABA 341 (1975), 287 (1953); ABA Inf. 1314 (1975): primacy of confidentiality

See also

• NY State Bar Op. 530: Turning over physical evidence held for a client
• NY State Bar Op. 531: Rehabilitation committee and the duty to report misconduct
• NY State Bar Op. 528: Client whereabouts and the duty to preserve confidences

Source

• Landing page: https://nysba.org/opinion-523/