Must a local government attorney reveal or report a false closed-meeting certification under the Freedom of Information Act?

Plain-English summary

The inquiry concerned a proposed amendment to the Virginia Freedom of Information Act requiring each member of a public body to certify that nothing improper was discussed in a closed meeting, and how that would affect city and county attorneys in three situations.

Where the members making the certification are not attorneys and counsel attends the meeting, the committee said DR 4-101(C)(3) permits (but does not require) a lawyer to reveal a client's confidence or secret when the lawyer has information clearly establishing that the client perpetrated a fraud on a third party related to the representation. Because the rule is permissive, the committee held that the government attorney's discretion to reveal the client's fraud on its constituency should be tempered by the heightened standard a government lawyer owes the public; absent a statute requiring disclosure, confidences must be preserved unless, in the attorney's professional judgment, a fraud has been committed that dilutes the citizenry's respect for government (citing EC 8-5).

Where a lawyer is a member of the body, the committee said it may violate DR 1-102(A)(4) for that lawyer-member to make an untruthful certification. Where the false certifier is an attorney, the committee opined it is rebuttably presumptive that a false certification reflects adversely on that lawyer's fitness to practice; and if the county attorney believes misconduct occurred and that the information clearly establishes the attorney-member perpetrated a fraud on a third party related to the representation under DR 4-101(C)(3), the county attorney would have an obligation to report the violation to the appropriate professional authority under DR 1-103 (citing LE Op. 761, 833). The committee declined a request to have the State Bar take a position on the legislation, noting that as an arm of the Supreme Court the Bar does not take positions on legislative matters, and referred the inquirer to the Virginia Bar Association.

Currency note

This opinion was issued in 1989, 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. Confidentiality is now within Rule 1.6, dishonesty within Rule 8.4, and the reporting duty within Rule 8.3; as the committee note observes, reporting where the information is a client confidence now turns on the client's consent under Rule 1.6(c)(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: Must a government attorney disclose a false closed-meeting certification?

A: Under this 1989 opinion, not automatically. The committee said DR 4-101(C)(3) makes disclosure of a client's fraud permissive, and that absent a statute requiring it, the government attorney must exercise heightened discretion before revealing client confidences.

Q: What if the person who falsely certified is a lawyer?

A: The committee opined that a false certification by an attorney-member is rebuttably presumed to reflect adversely on that lawyer's fitness to practice, and that making an untruthful certification may violate DR 1-102(A)(4).

Q: When would the county attorney have to report the misconduct?

A: The committee said that if the county attorney believes misconduct occurred and the information clearly establishes the attorney-member perpetrated a fraud on a third party related to the representation, he would have to report it under DR 1-103.

Background and rules framework

The opinion interpreted former Virginia DR 4-101(C)(3) (permissive revelation of a client's fraud on a third party), DR 1-102(A)(4) (dishonesty, fraud, deceit, or misrepresentation), and DR 1-103 (reporting another lawyer's misconduct), with the aspirational EC 8-5, against a proposed amendment to the Virginia Freedom of Information Act. These duties now appear in Rules 1.6, 8.4, and 8.3.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 4-101(C)(3) (revealing a client's fraud); DR 1-102(A)(4) (dishonesty)
• Former Virginia DR 1-103 (reporting misconduct); EC 8-5
• ABA Model Rule 1.6 (confidentiality); Model Rule 8.4 (misconduct); Model Rule 8.3 (reporting misconduct)

Statutes:

• Virginia Freedom of Information Act (proposed closed-meeting certification amendment).

Other opinions cited:

• Virginia LE Op. 761; LE Op. 833: reporting and revelation duties.

See also

• VA LEO 1308: When the Duty to Report Another Lawyer Is Ripe
• VA LEO 1566: Government Attorney, FOIA Request, and Duty to Report
• VA LEO 1836: City Attorney and Multiple Constituents
• VA LEO 1207: A Client's Confidences After Death

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1205.pdf

Original opinion text

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

Committee Opinion
April 13, 1989
LEGAL ETHICS OPINION 1205

COUNTY/CITY ATTORNEY – DISCLOSURE – ATTORNEY/CLIENT RELATIONSHIP – CONFIDENCES AND SECRETS: DUTY TO REVEAL A FALSE CERTIFICATION IN AN EXECUTIVE MEETING.

You wish to know the effect in three specific situations on city and county attorneys of a proposed amendment to the Virginia Freedom of Information Act which would require the presiding officer of any public body to certify that nothing improper was discussed in any executive or closed meeting. The response to your questions is predicated on a subsequent change to the proposed amendment which now requires that each member of the public body make such certification rather than only the presiding officer.

The first fact situation you pose assumes the presiding officer (now the members) is not an attorney, and you wish to know whether an attorney serving as counsel to the public body, in attendance at the meeting, may remain silent or is the attorney under an obligation to the public to disclose when a false certification is made by the presiding officer/members. Disciplinary Rule 4-101(C)(3) permits a lawyer to reveal a confidence or secret of his client when the lawyer has information which clearly establishes that his client has, in the course of the representation, perpetrated upon a third party a fraud related to the subject matter of the representation. Although DR:4-101(C)(3) is not mandatory in nature, the city or county attorney's permissive revelation of his client's fraud on its constituency should be balanced by the heightened standard for the government lawyer's application of discretion, in order to be fair to the city or county's residents. The Committee is of the view that absent a statute requiring the government attorney to reveal a false certification, a client's confidences and secrets must be preserved unless, in the government attorney's professional judgment, a fraud has been committed to dilute the citizenry's respect for the workings of government. (See EC:8-5)

With regard to your second question, any member of the body will be required by law to make a true certification to the matter. Under the Code of Professional Responsibility, it may be violative of DR:1-102(A)(4) for a lawyer-member to make a statement which is not truthful.

Under the third fact situation, the presiding officer (now, any member) is an attorney who has falsely certified that nothing improper has occurred and you wish to know whether the county attorney has an obligation to report that a violation has occurred. In addition to the revelation under DR:4-101(C)(3) (see discussion supra), DR:1-102 provides that a lawyer shall not engage in conduct "involving dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer's fitness to practice law." Disciplinary Rule 1-103 [DR:1-103] provides 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. The Committee opines that it is rebuttably presumptive that a false certification by a presiding officer-member/attorney would reflect adversely on that lawyer's fitness to practice law. However, if the county attorney believes that misconduct, as defined above, has occurred and the county attorney believes that the information clearly establishes that the presiding officer-member/attorney has perpetrated upon a third party a fraud related to the subject matter of the representation as provided in DR:4-101(C)(3), then the county attorney would have an obligation to report the violation "to the appropriate professional authority" as provided in DR:1-103. (See also LE Op. 761 and LE Op. 833)

Your fourth inquiry requests the State Bar to "take a position on this proposed change in the act." As an arm of the Supreme Court, the Virginia State Bar does not take positions with respect to legislative matters; however, the Committee would refer you to the Virginia Bar Association, which is actively engaged in legislative matters and may provide assistance to you.

Committee Opinion
April 13, 1989

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.