Can a lawyer represent a client who was wrongly ticketed in place of another person but refuses to tell the court the truth?

Plain-English summary

Two brothers, A and B, look alike and share an address. While driving B's car, A is stopped and, fearing his own driving record, identifies himself to the officer as B. The officer issues a citation for driving while suspended in B's name. B then asks a lawyer to represent him on the charge. B tells the lawyer the true facts but wants to plead not guilty and offer only evidence that he was never personally served with the suspension order (so he did not know he was suspended), in order to help A keep concealing A's involvement. When the lawyer tells B he should tell the court it was A who was driving, B refuses.

The opinion concludes the lawyer acted properly in calling on B to tell the court the truth, citing the lawyer's obligations under Oregon RPC 1.6, ORS 9.460(3), and RPC 3.3(b) (which requires reasonable remedial measures, including disclosure to the tribunal where permitted, when a person intends to engage in criminal or fraudulent conduct related to the proceeding).

The opinion further concludes that B's refusal shows B intends to continue the deception A began, and that the lawyer may not ethically assist B in doing so. It identifies Oregon RPC 8.4(a)(3) (dishonesty, fraud, deceit, or misrepresentation reflecting on fitness to practice), RPC 8.4(a)(4) (conduct prejudicial to the administration of justice), and RPC 1.2(c) (a lawyer may not counsel or assist a client in conduct the lawyer knows is illegal or fraudulent).

In practice

The opinion holds that, under the Oregon rules as they stood at the time of the opinion, a lawyer who knows a client means to perpetuate a fraud on the court must press the client to correct it, and must decline to provide the representation if the client refuses, because mounting the requested defense would assist deceit under RPC 1.2(c) and RPC 8.4. Verify the current text of Oregon RPC 1.2, 3.3, and 8.4 before relying on any specific requirement.

Common questions

Q: My client wants to run a defense that hides who was really driving. Can I do it?

A: No. The opinion concludes that representing the client in a way that continues a known deception on the court would assist fraud and deceit, prohibited by Oregon RPC 1.2(c) and RPC 8.4.

Q: Was the lawyer right to tell the client to come clean to the court?

A: Yes. The opinion concludes the lawyer was compelled to call on the client to tell the truth, citing RPC 3.3(b), RPC 1.6, and ORS 9.460(3).

Q: What happens when the client refuses to correct the record?

A: The opinion concludes the lawyer may not ethically represent the client, because doing so would assist the client's continuing deception.

Background and rules framework

The opinion interprets Oregon RPC 3.3(b) (remedial measures for criminal or fraudulent conduct related to a proceeding), RPC 1.2(c) (no counseling or assisting illegal or fraudulent conduct), and RPC 8.4(a)(3) and (a)(4) (dishonesty and conduct prejudicial to the administration of justice), together with RPC 1.6 and ORS 9.460(3). These correspond to Model Rules 3.3, 1.2, 8.4, and 1.6.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 3.3(b) / Model Rule 3.3 (candor; remedial measures)
• Oregon RPC 1.2(c) / Model Rule 1.2 (no assisting illegal or fraudulent conduct)
• Oregon RPC 8.4(a)(3), (a)(4) / Model Rule 8.4 (dishonesty; administration of justice)
• Oregon RPC 1.6 / Model Rule 1.6 (confidentiality)

Statutes:

• ORS 9.460(3) (lawyer's duty to employ honest means)

Cases:

• In re A., 276 Or 225, 554 P2d 479 (1976)
• In re Hartman, 332 Or 241, 25 P3d 958 (2001)
• In re Haws, 310 Or 741, 801 P2d 818 (1990)
• In re Hockett, 303 Or 150, 734 P2d 877 (1987)

See also

• OSB Ethics Op. 2005-34: Client Perjury

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-53.pdf