In Tennessee, does a lawyer's duty to protect client confidences prevail over a duty to disclose the client's fraud or perjury?

Plain-English summary

This short opinion recorded the resolution of a question the Board had earlier answered the other way. The Tennessee Supreme Court had considered a proposed amendment to Disciplinary Rule 7-102(B)(1) that would have confirmed Formal Ethics Opinion 93-F-133 and required lawyers to disclose privileged information of a client's fraud or perjury to the affected person or tribunal.

The opinion reported that the Court rejected the proposed amendment and overruled Opinion 93-F-133 by an order entered October 28, 1996. The Board therefore stated the governing conclusion: the ethical duty to protect the client's confidences prevails over the duty to disclose the client's fraud or perjury.

Currency note

This opinion was issued in 1996, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility (including DR 7-102(B)(1)) on which it relied, and before the ABA's 2002 Ethics 2000 revisions. The current Tennessee RPC 3.3 (candor toward the tribunal) and RPC 1.6 (confidentiality) address the same subject and may resolve it differently. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Under this opinion, did a Tennessee lawyer have to tell the court or an affected person about the client's fraud or perjury?

A: Per the opinion, no. After the Supreme Court rejected the proposed amendment to DR 7-102(B)(1), the Board concluded that the duty to protect the client's confidences prevailed over the duty to disclose the client's fraud or perjury.

Q: What happened to Formal Ethics Opinion 93-F-133?

A: The opinion reported that the Tennessee Supreme Court overruled 93-F-133 by an order entered October 28, 1996. The proposed rule amendment that would have confirmed 93-F-133's disclosure requirement was rejected.

Q: Does this opinion still state Tennessee's current rule on client perjury?

A: It should not be assumed to. The opinion predates Tennessee's 2003 Rules of Professional Conduct; current RPC 3.3 and RPC 1.6 govern, and the analysis may now differ. Verify the current rules.

Background and rules framework

The opinion concerned former DR 7-102(B)(1), the Code provision on a lawyer's response to a client's fraud, and the proposed amendment that would have required disclosure of privileged information of client fraud or perjury. The modern analogs are Model Rule 3.3 / Tennessee RPC 3.3 (candor toward the tribunal) and Model Rule 1.6 / Tennessee RPC 1.6 (confidentiality of information), which together govern how a lawyer must respond to client fraud or perjury under the current rules.

Citations and references

Rules of Professional Conduct (former Code):

• DR 7-102(B)(1) (lawyer's response to a client's fraud). Modern analog: Model Rule 3.3 / Tennessee RPC 3.3 (candor) and Model Rule 1.6 / Tennessee RPC 1.6 (confidentiality)

Other opinions cited:

• Tennessee Formal Ethics Opinion 93-F-133 (overruled by the Tennessee Supreme Court's October 28, 1996 order; had required disclosure of client fraud or perjury)

See also

• Tennessee Op. 93-F-133: A Lawyer's Duty When the Client Commits Perjury (Overruled)
• ABA Formal Op. 93-376: Client Lying in Discovery
• ABA Formal Op. 98-412: Client Violating a Court Order

Source

• Landing page: https://www.tbpr.org/ethic_opinions/96-f-133a

Original opinion text

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

96-F-133(a) - Client Perjury and Confidences

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

Formal Ethics Opinion 96-F-133(a)

Lawyers' ethical duty to protect client confidences prevails over duty to disclose client fraud or perjury.

The Tennessee Supreme Court has considered a proposed amendment of Disciplinary Rule 7-102(B)(1) that would confirm Tennessee Formal Ethics Opinion 93-F-133 and require lawyers to disclose privileged information of client fraud or perjury to the affected person or tribunal. The Court rejected the proposed amendment and overruled Ethics Opinion 93-F-133 by an order entered October 28, 1996. Therefore the ethical duty to protect client's confidences prevails over the duty to disclose client's fraud or perjury.

This 6th day of December, 1996.

FOR THE BOARD

Barbara J. Moss, Chair