What must a lawyer do after learning the client altered records before producing them to the other side?

Plain-English summary

The lawyer learned that the client, prior to providing records to the adverse party, had made alterations in those records. The committee was of the opinion that RPC 3.3(a)(2) would require the lawyer to consult with the client and seek permission to disclose the alteration.

If the client refused to permit disclosure, the committee was of the opinion that the lawyer would have to cease representation of that client. Continued representation would violate RPC 3.3(a)(2) and RPC 4.1(b), because it would be a fraudulent act for the client to obtain a settlement or a judgment based on falsified evidence.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rules then numbered RPC 3.3(a)(2) (candor toward the tribunal) and RPC 4.1(b) (truthfulness to others) correspond to Model Rules 3.3 and 4.1 and have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: What must a lawyer do on learning the client altered records before producing them?

A: Per the opinion, RPC 3.3(a)(2) requires the lawyer to consult the client and seek the client's permission to disclose the alteration.

Q: What if the client refuses to allow disclosure?

A: The committee was of the opinion that the lawyer would then have to cease representation, because continued representation would violate RPC 3.3(a)(2) and RPC 4.1(b).

Q: Why would staying in the case violate the rules?

A: The committee was of the opinion that it would be a fraudulent act for the client to obtain a settlement or judgment based on falsified evidence, which is what continued representation would assist.

Background and rules framework

The opinion applies the rules then numbered Washington RPC 3.3(a)(2) (candor toward the tribunal) and RPC 4.1(b) (truthfulness in statements to others), corresponding to Model Rules 3.3 and 4.1. The committee set a sequence: consult the client and seek consent to disclose the altered records, and if consent is refused, cease the representation rather than help the client obtain a result based on falsified evidence.

Citations and references

Rules of Professional Conduct:

• Washington RPC 3.3(a)(2) (candor toward the tribunal), corresponding to Model Rule 3.3.
• Washington RPC 4.1(b) (truthfulness in statements to others), corresponding to Model Rule 4.1.

See also

• WSBA Ethics Op. 1149: disclosure and withdrawal after a client's false deposition testimony
• WSBA Ethics Op. 942: whether a lawyer must reveal a bankruptcy client's hidden inheritance
• WSBA Ethics Op. 948: a lawyer-creditor's knowledge of assets a former client hid in bankruptcy

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=289

Original opinion text

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

Advisory Opinion: 1209
Year Issued: 1988
RPC(s): RPC 3.3(a)(2); 4.1(b)
Subject: Client secret or confidence; falsified evidence; duty to withdraw

The Committee considered your inquiry concerning a situation wherein you learned that your client, prior to providing records to the adverse party, made alterations in those records. The Committee was of the opinion that Rule 3.3(a)(2) would require you to consult with your client and seek permission of your client to disclose the alteration. If your client refused to permit disclosure, then you would have to cease representation of that client. The Committee was of the opinion that continued representation of the client would violate RPC 3.3(a)(2) and RPC 4.1(b) because it would be a fraudulent act for the client to obtain a settlement or a judgment based upon falsified evidence.