What must an Oregon lawyer do when a client commits perjury, or when a court-appointed client is fraudulently obtaining free counsel?

Plain-English summary

Two scenarios are presented. Lawyer A is court-appointed to represent an ostensibly indigent criminal defendant, then learns the defendant is not indigent but simply wants free counsel. Lawyer B represents a civil client who commits what the lawyer knows to be perjury during cross-examination. The opinion asks what each lawyer's ethical obligations are.

The opinion grounds the analysis in Oregon RPC 1.6 (confidentiality), RPC 3.3 (candor to the tribunal and remedial measures), and RPC 8.4 (misconduct), and in In re A., where the Oregon Supreme Court held that a lawyer who learns through confidential information that a client committed perjury must call on the client to rectify it. If the client will not, the opinion concludes the lawyer's only option is to withdraw, or seek leave to withdraw, without disclosing the client's wrongdoing. That governs Lawyer B: the only option, if the client will not correct the perjury, is to endeavor to withdraw.

Lawyer A's situation is different, the opinion explains, because it involves not only a past crime (the client's perjury about indigency) but also a continuing future crime, theft of services under ORS 164.125. Under RPC 1.6(b)(1), Lawyer A may ethically reveal information relating to the representation to the extent reasonably necessary to prevent that future crime, and it would also be ethical for Lawyer A to seek to withdraw while saying nothing about the wrongdoing.

In practice

Under the Oregon rules as they stood at the time of the opinion, RPC 1.6, RPC 3.3, and In re A. required a lawyer faced with completed client perjury to seek correction and then, if refused, to withdraw without disclosure. Per the opinion, the exception is a continuing future crime, where RPC 1.6(b)(1) permits disclosure to the extent reasonably necessary to prevent it. The opinion notes Oregon differs from ABA Model Rule 3.3(c): Oregon requires remedial measures "unless" RPC 1.6 is offended, while the Model Rule requires disclosure "even if" it reveals RPC 1.6 information.

Common questions

Q: What must a lawyer do when a client commits perjury?

A: The opinion concludes the lawyer must call on the client to rectify the perjury; if the client refuses, the lawyer's only option is to withdraw or seek leave to withdraw, without disclosing the wrongdoing.

Q: Can a lawyer disclose a client's fraud on the court in Oregon?

A: Generally no, beyond withdrawal. The opinion concludes Oregon's RPC 3.3 does not require disclosure of information protected by RPC 1.6, differing from ABA Model Rule 3.3(c).

Q: What if the client's conduct is an ongoing future crime, like theft of services?

A: Then disclosure may be allowed. The opinion concludes RPC 1.6(b)(1) lets the lawyer reveal information reasonably necessary to prevent the future crime.

Background and rules framework

The opinion interprets Oregon RPC 1.6 (confidentiality, including the future-crime exception in 1.6(b)(1)), RPC 3.3 (candor toward the tribunal and remedial measures, which in Oregon do not override RPC 1.6), and RPC 8.4 (misconduct). These track Model Rules 1.6, 3.3, and 8.4, with Oregon's RPC 3.3/1.6 relationship differing from the Model Rule.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality; future-crime exception)
• Oregon RPC 3.3 / Model Rule 3.3 (candor; remedial measures)
• Oregon RPC 8.4 / Model Rule 8.4 (misconduct)

Statutes:

• ORS 164.125 (theft of services)
• ORS 9.460(3) (duty to maintain client confidences and secrets)

Cases:

• In re A., 276 Or 225, 554 P2d 479 (1976)
• State v. Charlesworth, 151 Or App 100, 951 P2d 153 (1997)

See also

• OSB Ethics Op. 2005-19: Seeking Duplicate Damages
• OSB Ethics Op. 2005-23: Retired and Former Lawyer Confidences

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-34.pdf