What must a lawyer do when a client admits, after a deposition, that he testified falsely about income from illegal activity?

Plain-English summary

The committee understood the facts to be that a lawyer represented a client who had been deposed, and that after the deposition the client told the lawyer he had not been truthful about his gross income during certain years, and that the income was from unlawful activity.

The committee was of the opinion that the lawyer must advise the client to authorize the lawyer to tell opposing counsel of the inaccuracy of the original answer and then, on the facts presented, assert a claim of privilege or an objection to providing the information based on the asserted immateriality of the information.

The committee made the lawyer's continued representation contingent on that consent. The lawyer must advise the client that if the client does not give the consent, the lawyer would have to withdraw. If the client withheld consent, the lawyer must withdraw and could not reveal the information unless revealing it were permitted by RPC 1.6.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rules then numbered RPC 1.2, RPC 1.6(a), and RPC 3.3(a)(4) correspond to Model Rules 1.2, 1.6, and 3.3, and the candor and confidentiality provisions were materially revised in the current rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: If a client admits lying at a deposition, what is the lawyer's first step?

A: Per the opinion, the lawyer must advise the client to authorize the lawyer to tell opposing counsel of the inaccuracy of the original answer, then assert privilege or object on immateriality grounds.

Q: What happens if the client refuses to allow the correction?

A: The committee was of the opinion that the lawyer must advise the client that without consent the lawyer would have to withdraw, and if consent is withheld the lawyer must withdraw.

Q: Can the lawyer disclose the false testimony on the lawyer's own initiative?

A: After withdrawal, no, beyond what RPC 1.6 allows. The committee said the lawyer could not reveal the information unless revealing it were permitted by RPC 1.6.

Background and rules framework

The opinion applies the rules then numbered Washington RPC 1.2, RPC 1.6(a), and RPC 3.3(a)(4), corresponding to Model Rules 1.2, 1.6, and 3.3, to a client's post-deposition admission of false testimony about income from unlawful activity. The committee's resolution ran through client consent: the lawyer must seek authorization to correct the record (then assert privilege or immateriality), must withdraw if consent is refused, and is constrained by RPC 1.6 from revealing the information absent permission.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.2 (scope of representation), corresponding to Model Rule 1.2.
• Washington RPC 1.6(a) (confidentiality of information), corresponding to Model Rule 1.6.
• Washington RPC 3.3(a)(4) (candor toward the tribunal; false evidence), corresponding to Model Rule 3.3.

See also

• WSBA Ethics Op. 1123: a client's false dissolution testimony and the limits on disclosure
• ABA Formal Op. 93-376: a client who lies in discovery
• ABA Formal Op. 92-366: noisy withdrawal to avoid assisting a client's fraud

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=229

Original opinion text

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

Advisory Opinion: 1149
Year Issued: 1988
RPC(s): RPC 1.2; 1.6(a); 3.3(a)(4)
Subject: Client confidence or secret; false testimony at deposition; aiding fraudulent conduct; duty to withdraw

The Committee understood the facts to be that a lawyer represented a client who had been deposed, and following the deposition, the client advised his lawyer that he had not been truthful about his gross income during certain years and that that income was from unlawful activity. The Committee was of the opinion that the lawyer must advise the client to authorize the lawyer to advise the opposing counsel of the inaccuracy of the original answer and then, based upon the facts presented by your inquiry, assert a claim of privilege or objection to providing such information based upon the asserted immateriality of the information. The lawyer must advise the client that if the client does not give such consent, the lawyer would have to withdraw. If the client withheld the consent, then the attorney must withdraw and could not reveal the information unless it were permitted by RPC 1.6.