If a co-counsel learns the trial lawyer told the client to lie on the stand, must he report it to the court and to the lawyer's other bar?

Plain-English summary

Two attorneys represented a client charged with a felony. Attorney 1 handled research and preparation; Attorney 2, the more experienced trial lawyer, handled the trial and made all trial decisions. After the client was convicted, he told Attorney 1 that Attorney 2 had instructed him to lie on the witness stand. Attorney 1 had not known of that advice. The inquiry asked whether Attorney 1 had a duty to report the client's claim to the court, and whether there was a duty to report Attorney 2's misconduct to the out-of-state bar to which Attorney 2 belonged.

The committee set out DR 4-101(D)(2), under which a lawyer shall reveal information clearly establishing that the client perpetrated a fraud on a tribunal in the course of the representation, but must first request that the client advise the tribunal, with information "clearly established" when the client acknowledges the fraud to the attorney. It noted DR 7-102(A)(4) (not knowingly using perjured testimony or false evidence), DR 7-102(A)(7) (not counseling or assisting conduct the lawyer knows is illegal or fraudulent), DR 1-102(A)(1) (not violating a disciplinary rule or knowingly aiding another to), and DR 1-103(A) (reporting another lawyer's violation that raises a substantial question of fitness, except as DR 4-101 provides).

Applying these, the committee said that if the client actually committed perjury, Attorney 2 had to abide by DR 4-101(D)(2)'s disclosure obligation. As for Attorney 1, because he had information indicating Attorney 2 violated a disciplinary rule, then if Attorney 1 believed the violation raised a substantial question as to Attorney 2's fitness to practice, he had a duty under DR 1-103(A) to report it to the appropriate authority. The committee said the appropriate authorities here would include both the Virginia State Bar and the out-of-state bar of which Attorney 2 was a member.

Currency note

This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. As the committee note observes, current Rule 1.6(c)(3) and the consultation duty govern reporting when the information is a client confidence. The candor and reporting duties are now within Rules 3.3 and 8.3. 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, deadline, or requirement mentioned here.

Common questions

Q: If a lawyer learns co-counsel told the client to lie, must he report it?

A: Under this 1988 opinion, the committee said that if Attorney 1 believed the violation raised a substantial question as to Attorney 2's fitness, DR 1-103(A) gave him a duty to report it to the appropriate authority.

Q: To which bars must the report go?

A: The committee said the appropriate authorities would include both the Virginia State Bar and the out-of-state bar of which the offending lawyer was a member.

Q: What did the trial lawyer have to do about the perjury?

A: The committee said that if the client actually committed perjury, the trial lawyer had to abide by DR 4-101(D)(2), which requires revealing a client's fraud on a tribunal after first asking the client to disclose it.

Background and rules framework

The opinion interpreted former Virginia DR 4-101(D)(2) (revealing a client's fraud on a tribunal), DR 7-102(A)(4) and (A)(7) (false evidence; assisting fraud), DR 1-102(A)(1), and DR 1-103(A) (reporting misconduct). The current analogs are Rule 3.3 (candor toward the tribunal) and Rule 8.3 (reporting professional misconduct), the counterparts of ABA Model Rules 3.3 and 8.3.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 4-101(D)(2) (revealing a client's fraud on a tribunal)
• Former Virginia DR 7-102(A)(4) and (A)(7) (perjured testimony; assisting fraud)
• Former Virginia DR 1-102(A)(1) and DR 1-103(A) (misconduct; reporting)
• ABA Model Rule 3.3 (candor toward the tribunal) and Model Rule 8.3 (reporting misconduct)

See also

• VA LEO 1133: Reporting a Lawyer Who Advanced Funds
• VA LEO 1429: False Pleading and Duty to Report
• VA LEO 1528: Duty to Report a Lying Lawyer
• VA LEO 1522: Understated Deed Price, Duty to Report

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1093.pdf

Original opinion text

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

Committee Opinion
August 1, 1988
LEGAL ETHICS OPINION 1093

DUTY TO DISCLOSE FRAUD ON A
TRIBUNAL; DUTY TO REPORT
MISCONDUCT.
You advise that two attorneys served as counsel for a client charged with a felony.
Attorney 1 was responsible for research and preparation, and Attorney 2 was responsible
for the trial. Because Attorney 1 had less experience and competence in trying felonies,
all decisions at trial were left to Attorney 2. After the trial, at which the defendant was
convicted, the defendant informed Attorney 1 that Attorney 2 had instructed the
defendant to lie on the witness stand. Attorney 1 was not aware that this advice had been
given to the defendant.
You wish to know whether Attorney 1 has a duty to report the defendant's claim to the
court. You also wish to know whether or not there is a duty to report the attorney's
misconduct to the out-of-state bar to which Attorney 2 belongs.
DR:4-101(D)(2) provides that a lawyer shall reveal information which clearly
establishes that his client has, in the course of the representation, perpetrated a fraud
related to the subject matter of the representation upon a tribunal. Before revealing such
information, however, the lawyer shall request that his client advise the tribunal of the
fraud. Information is clearly established when the client acknowledges to the attorney
that he has perpetrated a fraud upon a tribunal.
DR:7-102(A)(4) states that in his representation of a client, a lawyer shall not
knowingly use perjured testimony or false evidence. DR:7-102(A)(7) states that in his
representation of a client, a lawyer shall not counsel or assist his client in conduct that the
lawyer knows to be illegal or fraudulent. DR:1-102(A)(1) states that a lawyer shall not
violate a disciplinary rule or knowingly aid another to do so. DR:1-103(A) states that a
lawyer having information indicating that another lawyer has committed a violation of
the disciplinary rules that raises a substantial question as to that lawyer's fitness to
practice law in other respects shall report such information to the appropriate professional
authority, except as provided in DR:4-101.
Due to Attorney 1 being advised by the client that Attorney 2 instructed him to commit
perjury, if the client actually committed perjury, then Attorney 2 must abide by the
provisions of DR:4-101(D)(2).
Based upon DR:1-103(A), because Attorney 1 has obtained information indicating that
Attorney 2 has violated a disciplinary rule, if Attorney 1 believes that such violation
raises a substantial question as to that lawyer's fitness to practice law in other respects,
the Committee opines that he has a duty to report this information to the appropriate
authority. In this instance the Committee believes that the appropriate authorities would
include both the Virginia State Bar and the out-of-state bar of which the attorney is a
member.
Committee Opinion
August 1, 1988

Committee Opinion
August 1, 1988
Legal Ethics Committee Notes. – If information about the ethics violation is a client
confidence, a lawyer may report the other lawyer’s misconduct only if the client consents
under Rule 1.6(c)(3); the lawyer considering whether to report must consult with the
client under that Rule.