What did Vermont Opinion 95-07 require when a lawyer learned a client gave material false testimony before the court ruled?

Plain-English summary

A client gave material false testimony in a child-custody hearing. The lawyer learned of the falsity afterward from a third party, confronted the client, and received confirmation; the client did not consent to disclosure. The court had not decided the case and another hearing was scheduled.

The committee treated the deception as continuing until disclosure or the court's decision. It said silence before decision would amount to using false testimony under former DR 7-102(A)(4). The opinion rejected the asserted privilege exception in DR 7-102(B)(1) for this ongoing fraud and noted that DR 4-101 permitted disclosure when another disciplinary rule authorized it.

The lawyer was to call on the client to correct the testimony. If the client refused, the committee said the lawyer had to disclose it to the court before decision. The committee left different questions involving discovery after a completed fraud unresolved.

Currency note

This opinion was issued in 1995, before Vermont's 1999 adoption of the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Could the lawyer remain silent because the false statement was the client's?

A: No. The committee said silence while the court still had the matter under decision would itself use the false testimony.

Q: Was asking the client to correct the testimony sufficient if the client refused?

A: No. The opinion required the lawyer to disclose the falsity before the court's decision if the client did not do so.

Background and rules framework

The committee applied former DR 7-102(A)(4), discussed DR 7-102(B)(1)'s treatment of fraud and privilege, and read DR 4-101(C)(2) as permitting disclosure authorized by disciplinary rules.

Citations and references

Former Vermont disciplinary rules:

• DR 7-102(A)(3), (4), (6), (7), (8), DR 7-102(B)(1), and DR 4-101(C)(2).

Other opinions cited:

• ABA Formal Opinion 341.

See also

• Vermont Ethics Op. 19-01: Probate court candor
• Arizona Ethics Op. 05-05: Client perjury

Source

• Landing page: VBA false-testimony opinions
• Original PDF: Vermont Advisory Opinion 95-07
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”