My client used my services to commit fraud and gave false testimony, then recanted at trial. Can I decline to represent him on the appeal?

Plain-English summary

The inquiring attorney represented Corporation X in a Superior Court breach-of-contract matter. The attorney discovered that the corporation's principal, Mr. X, had committed fraud and given false testimony. When confronted, Mr. X told the attorney to "lose" the evidence and said that if the truth came out he would lose. Because the matter was before a tribunal, the attorney discussed the false testimony with the judge pursuant to Rule 3.3. The judge advised that the attorney could withdraw during trial if Mr. X did not correct the testimony. Mr. X reluctantly recanted and lost the case.

The attorney told Mr. X that he would not represent him in the appeal and asked the panel whether he could decline the representation. The attorney reasonably believed that Mr. X had used the attorney's services to perpetrate fraudulent behavior on the court, and cited the permissive withdrawal grounds in the rule the opinion labels Rule 1.17(b)(2), (3), and (6).

The panel explained that Rule 1.17(b) describes circumstances under which a lawyer is permitted, but not required, to withdraw notwithstanding potential harm to the client, including when the client has used the lawyer's services to perpetrate a crime or fraud. Based on the facts provided, the panel concluded that the attorney may decline to represent Mr. X if the attorney reasonably believes Mr. X used the lawyer to perpetrate a fraud on the court.

Currency note

This opinion was issued in 1995, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies the rule it labels Rule 1.17 (Declining or Terminating Representation) and Rule 3.3 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended these provisions (the withdrawal rule now corresponds to Model Rule 1.16). 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a lawyer withdraw when the client used the lawyer's services to commit fraud?

A: Under this opinion, yes. The panel read the permissive withdrawal rule to allow withdrawal, though not to require it, when the client has used the lawyer's services to perpetrate a crime or fraud.

Q: Was the withdrawal here mandatory or permissive?

A: Permissive. The panel emphasized that the rule describes circumstances under which a lawyer is permitted, but not required, to withdraw notwithstanding potential harm to the client.

Q: Does the lawyer need certainty that the client committed fraud?

A: The panel framed the standard as the attorney's reasonable belief; it concluded the attorney may decline the representation if he reasonably believes the client used the lawyer's services to perpetrate a fraud on the court.

Background and rules framework

The opinion applies the withdrawal rule the panel labels Rule 1.17 (Declining or Terminating Representation), which corresponds by title and text to Model Rule 1.16, and it references Rule 3.3 (Candor Toward the Tribunal), corresponding to Model Rule 3.3. As quoted in the opinion, the withdrawal rule's subsection (b) permits withdrawal where it can be accomplished without material adverse effect on the client, or on enumerated grounds including that the client has used the lawyer's services to perpetrate a crime or fraud, that the client insists on an objective the lawyer considers repugnant or imprudent, or that other good cause exists. The panel's analysis rested on the permissive nature of these grounds.

Citations and references

Rules of Professional Conduct:

• MR 1.16 (declining or terminating representation; the panel labeled it Rule 1.17)
• MR 3.3 (candor toward the tribunal)
• RI RPC 1.17, 3.3

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 2024-08: Need Not Disclose a Fraudulent Document to the Court Before Withdrawing
• RI EAP Op. 2024-07: Must Disclose a Deceased Client's Arson Confession, Candor Over Confidentiality
• RI EAP Op. 2025-01: No Candor Duty to Report a Former Client's False Attestation in a Proceeding Never Handled

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2095-38.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Final

ETHICS ADVISORY PANEL
OPINION # 95-38, Request # 608
Issued - July 13, 1995

The inquiring attorney seeks Panel advice regarding withdrawal of representation as counsel to Corporation X in a Superior Court breach of contract matter. The inquiring attorney discovered that Corporation X's principal (Mr. X) had committed fraud and given false testimony. When the inquiring attorney confronted Mr. X with the damaging evidence, Mr. X told the inquiring attorney to "lose" the evidence and stated "If they know about that, I'll lose." Because the matter was before a tribunal, the inquiring attorney discussed Mr. X's false testimony with the Judge pursuant to Rule 3.3. The Judge advised that the inquiring attorney may withdraw from representation during the trial if Mr. X did not correct the testimony. Mr. X reluctantly recanted and lost the case.

The inquiring attorney informed Mr. X that he/she would not represent him in the appeal and seeks to decline representing Mr. X. The inquiring attorney reasonably believes that Mr. X used his/her services to perpetuate fraudulent behavior on the Court. The inquiring attorney cites Rule 1.17(b)(2)(3) and (6) to support his/her decision to decline the representation of the client.

Rule 1.17 entitled "Declining or Terminating Representation" states the following in part:

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:...

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; and...

(6) other good cause for withdrawal exists.

Rule 1.17(b) describes the circumstances under which a lawyer is permitted, but not required, to withdraw from representing a client notwithstanding potential harm to the client. Rule 1.17(b)(1) and (2) permit a lawyer to withdraw when the client pursues an action that the lawyer reasonably believes is criminal or fraudulent, or when the client has used the lawyer's services to perpetrate a crime or fraud. It appears from the facts provided by the inquiring attorney, that he/she may decline to represent Mr. X if the attorney reasonably believes that Mr. X used the lawyer to perpetrate a fraud on the Court.