Ethics Opinion

Opinion No. 76-6

June 1976

Summary: Where an attorney has been shown a document by a person who sought (unsuccessfully) to retain him as trial counsel, while advising the person as to some of the basic legal considerations involved in the suit, an attorney-client relationship existed, and the attorney may not properly reveal the fact that the person had the document, even though the person later perjures himself by denying possession of the document in a subsequent suit when represented by another attorney.

Facts: Attorney A, asked by B to represent him in a suit against C, declined to do so on the ground that C was a former client of A's. But A agreed to listen to B's story, and outlined some of the basic legal considerations involved in B's suit. During this discussion, B showed A a relevant document which he had received from C. B then employed another attorney X to handle his suit against C. At the trial, B testified that he had never received the document in question.
A asks whether he may give an affidavit to C's attorney proving B's perjury, for the purpose of a Motion for Relief under Massachusetts Rules of Civil Procedure 60.

Discussion: Massachusetts Rules of Civil Procedure 60, Motion for Relief, provides in part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) Mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party ... or it is no longer equitable that the judgment should have prospective application; or (4) any other reason justifying relief from the operation of the judgment ... ." (Italics added.)
The first question raised here is whether there existed between A and B a "professional relationship" (or in ordinary parlance, whether B was a "client" of A's) such that A was under duty not to disclose any information gained by him in the course of the relationship.
In our Opinion 75-7, we stated that the term "client" as used in DR 4-101(B) "... must include a former client as well as a present or continuing client." In this case, A agreed to listen to the story of B. That A was acting in an advisory capacity, even though he was not willing to represent B in the suit, is further shown by the fact that A "outlined some of the basic legal considerations involved in the suit." While A was not actually employed in the present matter, he received knowledge of the document in the course of a professional relationship with a client, which "extends to seeking legal advice for any purpose." (Wigmore Evidence, 3d Ed. S2294, page 563).
DR 4-101(A) and (B) provide that both "confidences" (information protected by the attorney-client privilege under applicable law) and "secrets" (other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client) shall not knowingly be revealed by a lawyer, except as permitted under DR 4-101(C). Clearly the information gained by A as to the receipt of the relevant document is protected under this rule.
The only relevant exceptions in DR 4-101(C) provide that "A lawyer may reveal ... (2) Confidences or secrets when permitted under Disciplinary Rules ... (3) The intention of his client to commit a crime and the information necessary to prevent a crime." DR 7-102(B)(1) requires a lawyer to reveal his client's fraud to the affected person or tribunal if he receives information clearly establishing that "his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal," and the client refuses or is unable to rectify the same. (Italics supplied.) We note parenthetically that the American Bar Association has amended DR 7-102(B)(1) to prohibit revelation by the lawyer of his client's fraud "where the information is protected as a privileged communication." No such amendment to SJC General Rule 3:22 has yet been adopted.
If B were not a "client" of A's, A would be required to "promptly reveal the fraud to the tribunal" under DR 7-102(B)(2). As we have concluded above that B was A's client for purposes of confidentiality and secrecy at the time A received the information in question, we shall proceed to consider the other relevant exceptions listed in DR 4-101(C) in order.
We do not believe DR 4-101(C)(3) to be applicable, since A at no time received information of "the intention of his client to commit a (future) crime," and of course when he did learn of the commission of the alleged crime it was too late to "prevent" it.
Was the fraud perpetrated by A's client "in the course of the representation"? The facts show that the fraud--perjury at the subsequent suit against C, while represented by Attorney X--was not perpetrated in the course of A's earlier representation of B, solely for the purpose of outlining some of the basic legal considerations involved. We therefore conclude that on the facts given to us by the inquirer, A was not required (and hence was not free) to reveal the fraud "to the affected person or to the tribunal" under DR 7-102(B)(2).
We do not reach this result easily. There are few occasions indeed on which we believe a person, whether lawyer or layman, should be barred from revealing facts showing perpetration of a crime or fraud of any kind. Upon the facts given here, however, we have finally concluded that the confidentiality of this client's admission should, and under our Disciplinary Rules does, as a matter of public policy, override the duty of his attorney as an officer of the court to advance the fair administration of justice.

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.