Must a New York lawyer who has withdrawn and never appeared before the court disclose that a false statement he earlier gave opposing counsel may be used as evidence?
NY State Bar Ethics Opinion 982: Disclosing potential fraud on a tribunal after withdrawal
Short answer: A lawyer who has never appeared before the tribunal has no duty and no right to reveal confidential information to correct a false statement he earlier gave opposing counsel before any proceeding began, even if that statement may later be placed before the court.
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.
Plain-English summary
A lawyer represented a sibling, "AB," in an estate matter expected to lead to a contested probate. The lawyer passed seemingly credible information from AB to opposing counsel for the other sibling, "CD." After CD's counsel strongly questioned the information, AB admitted in confidence that it was false and refused to correct it despite the lawyer's urging. The lawyer then withdrew under Rule 1.16, notifying opposing counsel of the withdrawal without referencing the false information. The lawyer, who is not admitted in New York and associated local counsel, asked whether he may or must disclose the now-known-false information if a party later submits it to the probate court.
The opinion answers in the negative. It examines the two permissive disclosure exceptions the lawyer raised. Rule 1.6(b)(2) (preventing a client from committing a crime) does not help: whether AB's conduct is a crime is a legal question outside the committee's jurisdiction, a past crime is not covered, and the fear that AB might later submit the information is too speculative, given that disclosure is permitted only "to the extent the lawyer reasonably believes necessary," and any such disclosure should go to AB's current counsel, not the court or opposing counsel. Rule 1.6(b)(3) (the "noisy withdrawal" provision to withdraw a representation a third person still relies on) does not apply because the lawyer states he does not reasonably believe CD's counsel is still relying on the information; the opinion stresses that mere suspicion is not enough, the lawyer must actually hold that belief.
On Rule 3.3, the opinion concludes the candor duty does not require disclosure here. Although Rule 3.3(a) is not limited to a "lawyer who represents a client before a tribunal" the way Rule 3.3(b) is, its disclosure mandate reaches only a false statement the lawyer "previously made to the tribunal," which the opinion reads to mean a statement the lawyer personally made to the court, not one made to adverse counsel that another lawyer later places before the court. The opinion notes that New York, unlike some jurisdictions, does not make Rule 3.3 duties ongoing or cross-reference them in Rules 1.6 and 1.9. Practical concerns reinforce the result: a client may discharge a lawyer precisely for refusing to further a questionable course, and imposing a duty on former counsel to monitor the client's use of prior statements exceeds what the rules require. The opinion expressly declines to decide what the lawyer's obligations would be if he later learned the former client had used or intended to use the statement before a tribunal.
In practice
The opinion holds that, under the New York rules as they stood at the time, a lawyer who has not appeared and never will appear before the tribunal has no duty and no right to disclose confidential information to correct a prior false statement made to opposing counsel before any proceeding began. Per the opinion, Rule 1.6(b)(2) does not permit disclosure of a past crime or a merely speculative future one, and Rule 1.6(b)(3)'s noisy-withdrawal option opens only on the lawyer's actual, reasonable belief that a third person still relies on the statement. The opinion reads Rule 3.3(a)'s correction duty to reach only statements the lawyer personally made to the court, and it leaves open the different question of a lawyer who later learns the statement is actually being used before a tribunal.
Common questions
Q: Must a lawyer who withdrew disclose a false statement he gave opposing counsel before any case began?
A: No. The opinion concludes that a lawyer who has not appeared before the tribunal has no duty under Rule 3.3 and no right under Rule 1.6 to reveal the confidential information to correct it.
Q: Does Rule 1.6(b)(3)'s "noisy withdrawal" exception let the lawyer disclose?
A: Only if the lawyer actually and reasonably believes a third person still relies on the statement. The opinion accepts the lawyer's statement that he does not so believe, given opposing counsel's rejection of the information, so the exception does not apply.
Q: Can the lawyer disclose to prevent a future crime under Rule 1.6(b)(2)?
A: The opinion finds disclosure unjustified: a past crime is not covered, the fear of a future submission is too speculative, and even an imminent crime would call for disclosure to the client's current counsel, not the court or opposing counsel.
Q: Does Rule 3.3(a) reach a statement the lawyer made to opposing counsel rather than to the court?
A: No. The opinion reads Rule 3.3(a)'s mandate to correct a statement "previously made to the tribunal" as covering only statements the lawyer personally made to the court, not statements another lawyer later places before it.
Background and rules framework
The opinion interprets New York Rule 1.6 (confidentiality, the analog of Model Rule 1.6), focusing on the permissive exceptions in Rule 1.6(b)(2) (preventing a client crime) and Rule 1.6(b)(3) (withdrawing a representation reasonably believed still relied upon), and Rule 3.3 (candor toward the tribunal, the analog of Model Rule 3.3), contrasting Rule 3.3(a) and Rule 3.3(b). It applies the definitions of "belief," "reasonable," and "reasonable belief" in Rules 1.0(b), 1.0(q), and 1.0(r).
Citations and references
Rules of Professional Conduct:
- MR 1.6 / NY Rule 1.6(a), 1.6(b)(2), 1.6(b)(3) (confidentiality; preventing a crime; noisy withdrawal)
- MR 3.3 / NY Rule 3.3(a), 3.3(b) (candor toward the tribunal)
- NY Rules 1.0(b), 1.0(q), 1.0(r) (definitions of "belief," "reasonable," "reasonable belief")
Other opinions cited:
- N.Y. State 674 (1994): Rule 1.6(b)(2) does not reach a past crime
- N.Y. City 1994-8 (1994): same as to a former client
- Virginia Opinion 1777 (2003): forbidding disclosure in comparable circumstances
- ABA Formal Op. 93-376 (1993): a "noisy withdrawal" does not relieve the duty of candor in Rule 3.3
See also
- NY State Bar Op. 998: disclosing client fraud after a short-sale closing
- NY State Bar Op. 984: refusing to share court filings with adverse counsel
- NY State Bar Op. 1057: disclosing client information on a motion to withdraw
- NY State Bar Op. 1084: disclosing a deceased client's statement exonerating a co-defendant
Source
- Landing page: https://nysba.org/ethics-opinion-982/