Ezel / Ethics Opinions / NYSBA
NYSBA 2009-08-14

If a client committed fraud on a court before New York's new Rules took effect on April 1, 2009, does the lawyer's duty to disclose follow the old Code or the new Rule 3.3?

Short answer: The old Code. The committee concludes that when the client's fraud occurred before April 1, 2009, the lawyer's disclosure obligation is governed by former DR 7-102(B)(1), which did not permit disclosure of protected confidences, not by Rule 3.3, regardless of when the lawyer learned of the fraud.
Currency note: this opinion is from 2009
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 831: Which rule governs disclosure of pre-2009 client fraud

Short answer: When a client's fraud on a tribunal occurred before April 1, 2009, the committee concludes the lawyer's disclosure obligation is governed by the former Code's DR 7-102(B)(1), not by new Rule 3.3, regardless of when the lawyer learned of the fraud.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A lawyer represented a client who pleaded guilty to disorderly conduct with a six-month conditional discharge, telling the court she had "stayed out of trouble" since the original misdemeanor arrest. After April 1, 2009, the client told the lawyer she had in fact been arrested in another county the week before the plea. The lawyer asked whether he must disclose the prior arrest to the prosecutor or the court. Because the fraudulent statement happened before April 1, 2009, the question is which rule set governs.

The committee explains that New York's new Rules took effect April 1, 2009, and that the old Code and the new Rules differ on two points. First, former DR 7-102(B)(1) required a lawyer to call on the client to rectify a fraud on a tribunal and, if the client refused, to reveal it, but "except when the information is protected as a confidence or secret." Rule 3.3(b) eliminates that confidentiality exception and requires reasonable remedial measures, including disclosure to the tribunal if necessary. Second, the new definition of "fraud" in Rule 1.0(i) appears broader than the committee's interpretation under the old Code because it adds conduct that "has a purpose to deceive."

The committee concludes the new rule does not apply retroactively. It reasons that the new Rule is "a dramatic break" from prior duties, that the presumption against retroactivity is strong where a client may have relied on the rules in place when the conduct occurred, and that the client "committed himself or herself when the fraud occurred." So where the fraud predates April 1, 2009, DR 7-102(B)(1) governs whether the lawyer learns of it before or after that date. Applying it here, the information the lawyer later learned was a protected confidence or secret under DR 4-101 with no applicable exception (the past arrest was completed wrongdoing, not a future crime), so the lawyer had no obligation to disclose it. The committee expressly declined to opine on raised constitutional and privilege questions about Rule 3.3, given its result.

In practice

The opinion holds that the timing of the client's fraudulent conduct, not the timing of the lawyer's knowledge, fixes which rule set applies: pre-April-1-2009 fraud is governed by former DR 7-102(B)(1) and its exception for protected confidences. The committee applies that to conclude the lawyer in the inquiry had no duty to disclose, because the information was a protected confidence and the only confidentiality exception in play (future crime) did not reach already-completed conduct. The committee also reads Rule 3.3's omission of the ABA's "continue to the conclusion of the proceeding" language as leaving the duration of the new duty unsettled, and suggests the duty under the new Rule extends only so long as the fraud's effect on the proceeding can still be remedied.

Common questions

Q: A client lied to a court before April 1, 2009. Does Rule 3.3 or the old Code control my disclosure duty?

A: The opinion concludes the former Code's DR 7-102(B)(1) controls, because the fraud occurred before the new Rules took effect, and that this holds whether the lawyer learned of the fraud before or after April 1, 2009.

Q: Under the old Code, did the lawyer have to disclose the client's earlier arrest here?

A: No. The opinion concludes the information was a protected confidence or secret under DR 4-101 with no applicable exception, so DR 7-102(B)(1)'s carve-out for protected confidences meant there was no duty to disclose.

Q: Does the future-crime exception to confidentiality apply?

A: No. The opinion explains the lawyer learned of the misrepresentation after it occurred, making it past wrongdoing rather than a future crime, so the DR 4-101(C)(3) (and Rule 1.6(b)(2)) future-crime exception did not apply.

Background and rules framework

The opinion compares former Code DR 7-102(B)(1) (duty to rectify or reveal a client's fraud on a tribunal, with an exception for protected confidences and secrets) and DR 4-101 (confidentiality) with the new Rules: Rule 3.3(b) (the analogue of ABA Model Rule 3.3 on candor toward the tribunal, requiring remedial measures including disclosure and removing the confidentiality exception), Rule 1.6 (confidentiality), and the Rule 1.0(i) definition of "fraud." It applies the presumption that new rules operate prospectively.

Citations and references

Rules of Professional Conduct:

  • MR 3.3 (candor toward the tribunal); MR 1.6 (confidentiality)
  • NY RPC 3.3(b), 1.0(i) (definition of "fraud"), 1.6, 1.7(b)(4), 1.9(a)
  • Former Code DR 7-102(B)(1), DR 4-101

Cases:

  • People v. Berroa, 99 N.Y.2d 134 (2002), and People v. DePallo, 96 N.Y.2d 437 (2001), duty to disclose witness perjury to the court
  • Hays v. Ward, 179 A.D.2d 427 (1st Dep't 1992), statutes effective on a stated date are construed prospectively

Other opinions cited:

  • N.Y. State 797 (2005), 781 (2004), 674 (1995), 466 (1977): information not protected where a DR 4-101 exception applies

See also

Source