A lawyer represents both a corporation and one of its officers; the officer admits perjury in a pending arbitration. Must the lawyer reveal it, and can the dual representation continue?
NY State Bar Ethics Opinion 674: Multiple representation of a corporation and an officer who commits perjury
Short answer: The opinion concluded that a lawyer who jointly represents a corporation and one of its officers, and learns the officer perjured himself in a pending arbitration, must call on the officer to rectify the perjury but, because the disclosure is a protected client secret, may not reveal it to the tribunal; the lawyer may withdraw from the representation, and whether the joint representation can continue depends on whether differing interests have arisen.
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 corporation and several of its officers as co-respondents in an arbitration. After the first day of testimony, one officer admitted, during a strategy session attended by the corporation's general counsel, that he had perjured himself; the same false facts had earlier been submitted to a federal agency. Neither the lawyer nor general counsel had known the testimony was false. The committee set out the lawyer's duties to each client and how those duties interact.
As to the officer-client, the committee concluded the lawyer's first duty under DR 7-102(B)(1) was to remonstrate, that is, to call on the officer to rectify the fraud. If the officer refused, the lawyer still could not disclose, because the committee treated the admission of past perjury as a client "secret" under DR 4-101(A) and read DR 7-102(B)(1)'s "except when the information is protected as a confidence or secret" clause to forbid disclosure unless a DR 4-101(C) exception applied. It found none applied: the future-crimes exception (DR 4-101(C)(3)) does not reach a past, completed perjury, and whether disclosure was "required by law" (DR 4-101(C)(2)) was a legal question outside the committee's jurisdiction. The opinion stressed that New York's Code favors confidentiality over the lawyer's role as an officer of the court, so the lawyer was bound to maintain the secret.
The committee held the lawyer may withdraw from representing the officer. It read the 1990 amendments to DR 2-110(C) to permit withdrawal where the client used the lawyer's services to perpetrate a fraud (DR 2-110(C)(1)(g)) or rendered the representation unreasonably difficult (DR 2-110(C)(1)(d)); eliciting the perjury on direct examination fell within that. Any withdrawal had to protect the client's interests under DR 2-110(A)(2) and could not divulge the protected secret. To the extent earlier opinions conflicted with the relaxed 1990 withdrawal rules, the committee modified them.
As to the corporate client, the committee explained the lawyer must first determine, as a matter of law, whether the officer's perjury is imputed to the corporation. If it is, the corporation is treated as having committed the fraud and counsel must remonstrate with it through the entity-representation steps in EC 5-18 (asking reconsideration, seeking a separate opinion, referring the matter up to higher authority), without revealing the officer's secret. If the corporation does not rectify, the lawyer still may not disclose to the tribunal, because the perjury is also the corporation's secret. Whether the joint representation can continue turns on DR 5-105: whether the lawyer remains convinced no differing interests are present, or if they are, whether both clients consent and it is obvious the lawyer can adequately represent each.
Currency note
This opinion was issued in 1994, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. The opinion also predates New York's 2002-era and later rule changes and the modern client-fraud disclosure provisions. 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: If a client admits past perjury to the lawyer, can the lawyer tell the tribunal?
A: Under this opinion, no. The committee treated the admission as a protected secret under DR 4-101 and concluded that, with no applicable disclosure exception, the lawyer was prohibited from revealing it; the lawyer's duty was to urge the client to rectify.
Q: Does the future-crimes exception let the lawyer disclose the perjury?
A: The opinion concluded no. It held the future-crimes exception (DR 4-101(C)(3)) does not reach a past, completed perjury, and that even if the perjury were arguably continuing, disclosing it would necessarily reveal the past crime, so the discretion should not be exercised.
Q: Can the lawyer withdraw from the representation?
A: Yes. The opinion read the 1990 amendments to DR 2-110(C) to allow withdrawal where the client used the lawyer's services to perpetrate a fraud or rendered the representation unreasonably difficult, provided the lawyer protects the client's interests and does not divulge the secret.
Q: Can the lawyer keep representing both the corporation and the officer?
A: The opinion made this fact-specific under DR 5-105: the lawyer may continue only if convinced no differing interests are present, or if they are present, only with both clients' consent where it is obvious the lawyer can adequately represent each.
Background and rules framework
The opinion interpreted New York's former Code: EC 5-18 (the entity lawyer's allegiance to the organization), DR 5-105 (concurrent conflicts and consent), DR 5-109 (conduct toward the organization's constituents), DR 7-102(B)(1) (the duty to call on a client to rectify a fraud, subject to the confidence/secret exception), DR 4-101 (preservation of confidences and secrets), and DR 2-110 (withdrawal). The closest Model Rule analogues are Rule 1.13 (organization as client), Rule 1.6 (confidentiality), Rule 1.7 (concurrent conflicts), Rule 1.16 (declining or terminating representation), and Rule 3.3 (candor toward the tribunal). New York replaced the Code with the Rules of Professional Conduct in 2009, and the balance between confidentiality and disclosure of client fraud has since changed; the provisions cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.13 (organization as client)
- MR 1.6 (confidentiality of information)
- MR 1.7 (concurrent conflicts of interest)
- MR 1.16 (declining or terminating representation)
- MR 3.3 (candor toward the tribunal)
- NY EC 5-18; DR 5-105; DR 5-109; DR 7-102(B); DR 4-101; DR 2-110
Other opinions cited:
- N.Y. State 523 (1980): client perjury treated as a "secret"
- N.Y. State 405 (1975): discretion not to disclose a continuing crime tied to a past crime
- ABA Formal Op. 341 (1975): scope of the duty to rectify client fraud
- This opinion modifies N.Y. State 178, 187, 212 (1971), 440 (1976), 466 (1977), 496 (1978), 562 (1984), and 598 (1989)
See also
- NY State Bar Op. 700: Confidentiality and fraud on the tribunal
- NY State Bar Op. 982: Disclosing potential fraud on a tribunal
- NY State Bar Op. 831: Disclosing client fraud on a tribunal before April 2009
- NY State Bar Op. 1057: Disclosing client information on a motion to withdraw
Source
- Landing page: https://nysba.org/opinion-674/