If a client is collecting workers' compensation and disability benefits that would be reduced if disclosed, must the lawyer reveal it to the agency?

Plain-English summary

The lawyer represented clients receiving workers' compensation in Alaska and federal disability benefits. The workers' compensation agency would reduce its payments if notified of the disability benefits, and the inquiry asked whether the lawyer should disclose receipt of the disability benefits to the agency.

Under the Code of Professional Responsibility, DR 7-102(B)(1), the committee unanimously concluded the lawyer would be required to direct the client to disclose the relevant information to the Alaska Workers' Compensation Division, and, if the client refused, the lawyer would be required to reveal the fraud to the agency because it would fall within the Code's definition of "tribunal."

The committee then considered the matter under the Rules of Professional Conduct effective September 1, 1985. Pursuant to RPC 3.9, 3.3(a), and 1.6, the lawyer would first have to determine whether the client's conduct constituted a continuing crime. If it did, the lawyer would again have to instruct the client to disclose the facts and, if the client refused, reveal them. If it did not constitute criminal conduct, the lawyer would have to advise the client to disclose the information and, if the client did not, withdraw from further representation so as to avoid violating RPC 8.4(c). The committee also said the lawyer should attempt to adjudicate the legal question involved.

Currency note

This opinion was issued in 1985, before the 2006 revisions to the Washington 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Must the lawyer first ask the client to disclose the benefits?

A: Yes. Under both the old Code and the 1985 RPC, the committee said the lawyer must direct or advise the client to disclose the relevant information to the workers' compensation agency.

Q: What happens under the 1985 RPC if the client refuses to disclose?

A: It depends on whether the conduct is a continuing crime. If it is, the lawyer must reveal it. If it is not criminal, the lawyer must withdraw from the representation to avoid violating RPC 8.4(c).

Q: How did the old Code handle a client's refusal?

A: Under DR 7-102(B)(1), the committee said the lawyer would be required to reveal the fraud to the agency, which fell within the Code's definition of "tribunal."

Q: Did the committee suggest any other step?

A: Yes. The committee said the lawyer should attempt to adjudicate the legal question involved.

Background and rules framework

The opinion applies DR 7-102(B)(1) of the former Code of Professional Responsibility and, under the Rules of Professional Conduct effective September 1, 1985, RPC 1.6 (confidentiality), RPC 3.3(a) (candor toward a tribunal), RPC 3.9 (advocate in nonadjudicative proceedings), and RPC 8.4(c) (conduct involving dishonesty or fraud). These correspond to Model Rules 1.6, 3.3, 3.9, and 8.4. The committee's analysis turned on whether the client's continued receipt of benefits was a continuing crime, which determined whether the lawyer must reveal the fraud or instead withdraw.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6 (confidentiality)
• Model Rule 3.3 / Washington RPC 3.3(a) (candor toward a tribunal)
• Model Rule 3.9 / Washington RPC 3.9 (advocate in nonadjudicative proceedings)
• Model Rule 8.4 / Washington RPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation)
• DR 7-102(B)(1) (former Washington Code of Professional Responsibility)

See also

• WSBA Ethics Op. 1006: client confidences and a sentencing court's error
• WSBA Ethics Op. 905: a legal services contract requiring disclosure of case information

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=20

Original opinion text

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

Advisory Opinion: 909
Year Issued: 1985
RPC(s): DR 7-102 (B) (1); RPC 1.6; 3.3 (a); 3.9; 8.4(c)
Subject: Client confidences; disclosure of information that would reduce clients' entitlement to workers' compensation benefits

[The lawyer represented clients receiving workers' compensation in Alaska and federal disability benefits. The workers' compensation agency would reduce its payments if notified of the disability benefits. The inquiry concerned whether the lawyer should disclose receipt of the disability benefits to the workers' compensation agency.] The Committee was of the unanimous opinion that under the Code of Professional Responsibility, DR 7-102 (B) (1), you would be required to direct your client to disclose the relevant information to the Alaska Workers' Compensation Division, and if your client refused to do so, you would be required to reveal the fraud to the agency because it would fall within the definition of "tribunal" provided in the CPR.

The Committee further considered this matter in light of the Rules of Professional Conduct which become effective on September 1, 1985. The Committee determined that pursuant to RPC 3.9, 3.3(a), and 1.6, you would first be required to determine whether your client's conduct constituted a continuing crime. If you determined that it did, then you would again be required to instruct your client to disclose the facts, and if the client refused to do so, then you would be required to reveal it. If, however, you determine that it did not constitute criminal conduct, then you would be required to advise your client to disclose the information, and if your client did not disclose it, then you would be required to withdraw from further representation of the client so as to avoid violation of RPC 8.4(c). The Committee was further of the opinion that you should attempt to adjudicate the legal question involved.