If a client secretly makes a side deal that renders a signed court stipulation false, must the lawyer tell the court, and can the lawyer reveal it?
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This page answers the general question as of 2005. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A lawyer (RA) negotiated a settlement that became a signed court stipulation. As the client was about to sign, the lawyer learned the client had a secret "side agreement" with the other party that redistributed the funds, making the stipulation materially false. The lawyer urged the client to correct the stipulation or let the lawyer disclose the side deal; the client refused and asserted attorney-client privilege. The client signed the stipulation, and the lawyer moved to withdraw before judgment was entered. The committee analyzed Rules 1.2, 1.6, and 3.3 as they stood in 2005.
On whether the lawyer had to tell the court, the committee treated the stipulation as the equivalent of the client's sworn offer of false evidence. It concluded that Rule 3.3(d) governed: where the false evidence is the client's own testimony and the client will not consent to disclosure after reasonable efforts, the lawyer's obligation is to seek to withdraw "without disclosure." So the lawyer had no duty to disclose the side agreement; withdrawal was mandatory, but disclosure was not.
On whether the communication was absolutely privileged, the committee said it could be revealed only under a Rule 1.6 exception. The mandatory-disclosure provision (preventing imminent death or substantial bodily harm) did not apply. Rule 1.6(d) permitted, but did not require, disclosure if the lawyer reasonably believed nondisclosure was likely to cause substantial financial harm to another, which the committee said was a fact question it could not decide. Rule 1.6(f) did not apply, because the stipulation was filed with the lawyer's knowledge and because Rule 3.3(c) and (d) limited that exception. The committee concluded the lawyer may not disclose the falsity unless he believes nondisclosure will cause another substantial financial injury.
In practice
This opinion applies the version of North Dakota's Rules of Professional Conduct in force in 2005, which North Dakota materially revised effective August 1, 2006; the analysis below reflects the earlier rule. Under that rule, the committee held that a lawyer who learns the client has rendered a court stipulation false, where the falsity is the client's own offer of false evidence, must seek to withdraw without disclosing to the court if the client refuses to consent. The committee treated disclosure of the underlying communication as permissive only, and only on the narrow Rule 1.6(d) basis that the lawyer reasonably believes nondisclosure is likely to cause substantial financial harm to another.
Common questions
Q: Does the lawyer have to tell the court that the stipulation is false?
A: No, under the rule the committee applied. Because the stipulation was the client's own offer of false evidence, Rule 3.3(d) required the lawyer to make reasonable efforts to get the client's consent and, failing that, to seek to withdraw without disclosure.
Q: Is the client's communication about the side agreement absolutely privileged?
A: No. The committee said it could be revealed only if a Rule 1.6 exception applied. The only one potentially available was Rule 1.6(d), which permits (but does not require) disclosure if the lawyer reasonably believes nondisclosure is likely to cause substantial financial harm to another.
Q: Could the lawyer rely on the exception for rectifying a client's fraud?
A: No. The committee found Rule 1.6(f) inapplicable, both because the stipulation was filed with the lawyer's knowledge and because Rule 3.3(c) and (d) limited that exception where the falsity was in the client's evidence.
Background and rules framework
The opinion interprets North Dakota Rules of Professional Conduct 3.3 (candor toward the tribunal), 1.6 (confidentiality), and 1.2 (scope of representation) as they stood in 2005. The version of Rule 3.3 applied here directed a lawyer to seek to withdraw "without disclosure" when the false evidence was the client's own; North Dakota revised its Rules of Professional Conduct effective August 1, 2006, so the rule text quoted in the opinion reflects the earlier version.
The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.
Citations and references
Rules of Professional Conduct:
- N.D.R. Prof. Conduct 3.3 (candor toward the tribunal)
- N.D.R. Prof. Conduct 1.6 (confidentiality of information)
- N.D.R. Prof. Conduct 1.2 (scope of representation; no assisting fraud)
- N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)
See also
Source
- Landing page: https://www.sband.org/page/ethics_opinions
- Original PDF: https://web.archive.org/web/20240726081310id_/https://cdn.ymaws.com/www.sband.org/resource/resmgr/docs/for_lawyers/opinion_05-03.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Full opinion text unavailable from the official source; see the linked source above for the complete text.
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