When a client has given fabricated records to an agency, must an Ohio lawyer disclose the fraud, or does confidentiality control?

Plain-English summary

The Board addressed a lawyer asked to represent a client who had already offered fabricated records to an administrative agency investigating the client, where the agency was unaware of the fabrication and the fabrication had occurred without the lawyer's knowledge. The two questions were whether the lawyer, if accepting the representation, must reveal the fraudulent records to the agency, and whether the lawyer, if declining, must reveal them.

The Board explained that DR 7-102(A)(6) prohibits a lawyer from participating in the preservation of evidence the lawyer knows is false, so a lawyer who accepts the case may not present the fabricated records to the agency. It described the conflict a client's false evidence creates between the duty of confidentiality and the duty of candor, and concluded that the lawyer must try to persuade the client not to offer the evidence or, if it was already offered, to disclose it immediately; if the client refuses to rectify the situation, the lawyer should decline or withdraw under DR 2-110. The Board then addressed DR 7-102(B)(1), which requires a lawyer to reveal to the affected person or tribunal information clearly establishing that a client has perpetrated a fraud, and noted that a "tribunal" includes administrative bodies.

The Board observed that Ohio had not adopted the ABA's 1974 amendment to DR 7-102(B)(1) exempting privileged information from the disclosure duty, but it nonetheless concluded that the rule requires disclosure of a client's past fraud only when the information is not protected by the attorney-client privilege. It reasoned that an attorney-client relationship was established when the client disclosed the existence of the fraudulent records, that the duty of confidentiality can attach to a preliminary consultation and continues after the relationship ends, and that the privilege does not apply where the client sought the lawyer's aid to commit a future crime or fraud. The Board concluded that the information about the fraudulent records is privileged and may not be divulged unless permitted under DR 4-101(C); that a lawyer may not offer false evidence; that the lawyer must try to convince the client to reveal the fraud to the agency; and that, if the client refuses, the lawyer should withdraw under DR 2-110.

Currency note

The Board withdrew this opinion by Advisory Opinion 2020-03 on April 3, 2020. The opinion's header also points to Disciplinary Counsel v. Heffernan, 58 Ohio St.3d 260 (1991), and ABA Formal Op. 93-376. It issued in 1990 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments, court decisions, or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: If a lawyer takes the case, can the lawyer present the fabricated records to the agency?

A: No. The Board concluded that DR 7-102(A)(6) prohibits participating in the preservation of evidence the lawyer knows is false, so a lawyer who accepts the case may not present the fabricated records.

Q: Must the lawyer report the client's fraud to the agency?

A: The Board concluded that the information is privileged and may not be disclosed unless permitted under DR 4-101(C). It read DR 7-102(B)(1) to require disclosure only when the information is not protected by the attorney-client privilege.

Q: What should the lawyer do if the client will not correct the fraud?

A: The Board concluded the lawyer must try to convince the client to reveal the fraud and, if the client refuses, should decline or withdraw from the representation under DR 2-110.

Q: Does the privilege protect a client who came to the lawyer to commit a future fraud?

A: No. The Board concluded the privilege does not apply if the client sought the lawyer's aid or assistance in committing a future crime or fraud.

Background and rules framework

The opinion interprets the former Code of Professional Responsibility: DR 7-102(A) (a lawyer shall not offer false evidence or participate in preserving evidence known to be false), DR 7-102(B)(1) (revealing a client's fraud to the affected person or tribunal), DR 4-101 and DR 4-101(C) (preservation and permitted revelation of confidences and secrets), DR 2-110 (declining or withdrawing from representation), and EC 4-6 (confidentiality continues after the relationship ends). The Board read DR 7-102(B)(1) in light of the attorney-client privilege even though Ohio had not adopted the ABA's 1974 privilege exception.

Citations and references

Rules of Professional Responsibility (Ohio, former):

• DR 7-102(A), prohibition on offering false evidence or preserving evidence known to be false
• DR 7-102(B)(1), revealing a client's fraud to the affected person or tribunal
• DR 4-101 and DR 4-101(C), confidences and secrets, and permitted revelation with consent
• DR 2-110, declining or withdrawing from representation
• EC 4-6, continuation of the confidentiality duty after representation ends

Other authorities cited:

• Wolfram, Modern Legal Ethics 641 (West, 1986)
• Callan, Professional Responsibility and the Duty of Confidentiality, 29 Rutgers L. Rev. 332 (1976)
• ABA/BNA Lawyers' Manual on Professional Conduct 31:101 (1989)

Other opinions cited:

• ABA Committee on Ethics and Professional Responsibility, Informal Op. 1470 (1981): persuading the client to disclose
• ABA Committee on Ethics and Professional Responsibility, Informal Op. 1314 (1975): privilege over the obligation to rectify a client's fraud

See also

• Ohio BPC Op. 1988-033: Filing a 'Blanket' Motion to Suppress and the Duty of Candor
• Ohio BPC Op. 1990-004: Disclosing a Client's Identity on IRS Form 8300
• Ohio BPC Op. 1990-001: Duty to Report Another Lawyer's Misconduct and the Privilege Exception
• Ohio BPC Op. 1986-001: Grievance Committee's Duty to Report Crime Discovered in an Investigation

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-007.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 90-7
Issued April 20, 1990
Withdrawn by Adv. Op. 2020-03

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

[See, Disciplinary Counsel v. Heffernan, 58 Ohio St.3d 260 (1991); ABA, Formal Op. 93-376]

SYLLABUS: Confidential information obtained during an attorney-client relationship is privileged and may not be disclosed by the lawyer unless permitted under DR 4-101(C). A lawyer may not offer false evidence to any tribunal under DR 7-102 (A). A lawyer should try to convince a client who offered fabricated evidence to reveal that fact to the affected tribunal. A lawyer's duty of confidentiality under DR 4-101 outweighs his or her duty to rectify a fraud committed by a client under DR 7-102 (A). If the client refuses to reveal the fraud the lawyer should withdraw from the representation under DR 2-110.

OPINION: We have before us your request regarding a client who offered fabricated records to an administrative agency investigating the client. The administrative agency is unaware that the records are fabricated and the fabrication was done without your knowledge. Your specific questions are: 1) if you agree to the representation must you reveal the fraudulent records and 2) if you decline the representation must you reveal the fraudulent records to the administrative agency?

Disciplinary Rule 7-102 (A) (6) prohibits a lawyer from participating in the preservation of evidence the lawyer knows is false. A lawyer who presents evidence during an adversary hearing "in effect warrants that he or she does not know that the evidence is false." Wolfram, Modern Legal Ethics 641 (West, 1986), citing, DR 7-102 (A) (4). Therefore, if you accept the case you may not present the fraudulent records to the administrative agency.

A client who offers evidence the lawyer knows to be false creates a conflict between the lawyer's duty of confidentiality and the duty of candor to the tribunal. ABA Annotated Model Rules of Professional Conduct, 207 (1984). The lawyer must try to persuade the client not to offer the evidence or if it has been offered, to disclose it immediately. ABA Committee on Ethics and Professional Responsibility, Informal Op. 1470 (1981). If the client refuses to rectify the situation the lawyer should decline the representation or withdraw from the representation. Code of Professional Responsibility DR 2-110 (B), (C)

Disciplinary Rule 7-102 (B) (1) requires a lawyer to reveal to the affected person or tribunal information clearly establishing that a client has perpetrated a fraud. A tribunal "includes all courts and all other administrative bodies." Code of Professional Responsibility, Definitions Section 6. The lawyer must promptly call upon the client to rectify the fraud and must reveal the fraud if the client refuses or is unable to do so. Code of Professional Responsibility, DR 7-102 (B) (1). How is this duty to disclose affected by the attorney-client privilege?

Ohio has not adopted the ABA's 1974 amendment to DR 7-102 (B) (1) which prohibits the disclosure of the past fraud when the information is protected by the attorney-client privilege. "The confidential privilege . . . must be upheld over any obligation of the lawyer to betray the client's confidence in seeking rectification of any fraud that may have been perpetrated by his client upon a person or tribunal." ABA Committee on Ethics and Professional Responsibility, Informal Op. 1314 (1975).

We agree. Although this state does not have the exception in DR 7-102 (B) (1), we believe that the rule only requires disclosure of a client's past fraud when such information is not protected against disclosure by the attorney-client privilege. Callan, Professional Responsibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary System, 29 Rutgers L. Rev. 332, 361-362 (1976).

The attorney-client privilege set forth in DR 4-101 prohibits a lawyer from revealing the confidences or secrets of a client. A lawyer may reveal confidences or secrets if the client consents after full disclosure or if permitted under the Disciplinary Rules. Code of Professional Responsibility, DR 4-101 (C) (1), (2).

Critical to this request is whether an attorney-client relationship existed when the information about the fabricated records was revealed. If the attorney-client relationship did exist, then the duty of confidentiality supersedes the duty to disclose under DR 7-102 (B) (1). Based solely on the facts in your letter, we believe an attorney-client relationship was established when the client disclosed the existence of the fraudulent records. The duty of confidentiality can extend to a preliminary consultation even if employment does not arise. ABA/BNA Lawyers' Manual on Professional Conduct 31:101 (1989). Moreover, the duty of confidentiality continues even after the termination of the attorney-client relationship. Code of Professional Responsibility, EC 4-6.

However, the protection of the privilege does not apply if the client came to you seeking aid or assistance in committing a future crime or fraud. Callan, Professional Responsibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary System, 29 Rutgers L. Rev. 332, 342 (1976). The protection of the privilege is unavailable when the client's purpose, at the time of the consultation, is to abuse or exploit the confidential relationship. Id.

In conclusion, it is our opinion that the information regarding the fraudulent records should be considered privileged and may not be divulged unless permitted under DR 4-101(C). A lawyer may not offer false evidence to any tribunal under DR 7-101(A) (4), (5), (6), (7). A lawyer must try to convince the client to reveal the fraudulent nature of the evidence to the administrative agency. If the client refuses, the lawyer should withdraw from the representation under DR 2-110.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.