Ethics Opinion

Opinion No. 89-1

January 1989

Summary: In a civil case, a lawyer who learns from a confidential client communication that a client intends to commit perjury or some other crime has discretion under DR 4-101(C)(3) to reveal the client's intention and the information necessary to prevent the perjury or other crime even if such disclosure makes it clear that the client has already committed perjury during depositions. In addition, the lawyer has the obligation under DR 7-102(B)(l) to reveal any fraud committed by the client during the course of representation through perjury unless the information is protected as a "privileged communication." Information that a lawyer has discretion to reveal under DR 4-101(C)(3) is not protected as a "privileged communication" and must therefore be revealed. If the lawyer does not know of any future crime that client intends to commit, the lawyer must not disclose the client's past perjury committed during depositions, but the lawyer must withdraw to avoid violating DR 7-102(A)(7).

Facts: In response to a request for production of documents in a civil case, Client produced a document and then authenticated it under oath during his deposition. Thereafter, Client disclosed to Attorney that he had known all along that the document was not authentic. The document is not itself the subject of the litigation but it is relevant to the proof of a material issue. Attorney believes that it would be possible to continue to represent Client without using the document, but Client's testimony on other matters will be necessary at trial. Attorney does not know whether opposing counsel will introduce the document or cross examine the client with respect to it. No trial or pretrial has as yet been scheduled, nor has discovery been completed. Attorney inquires whether he is permitted or required to disclose that the document is not authentic.
Discussion: This inquiry raises an issue that has troubled lawyers greatly for a long time: What is the obligation of a lawyer when a client discloses, while civil litigation is still in progress, that he or she has committed perjury during depositions? We emphasize that the inquiry involves civil litigation only. The resolution in a criminal matter will not necessarily be the same. Although the Supreme Judicial Court has addressed the issue several times in recent years, in both the civil and criminal contexts, it has yet to give lawyers definite guidance in either. We are moved to write this opinion in the hope of sorting out some of the issues, although we do not give clear-cut advice for all cases because a crucial issue in some situations will involve a question of substantive criminal law, which we are forbidden under our rules to address.
The provisions of the Disciplinary Rules that are involved in addressing the issue are DR 4-101(C)(2) and (3) and DR 7-102(B)(1), which provide as follows:
DR 4-101(C) A lawyer may reveal:
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent the crime.
DR 7-102(B): A lawyer who receives information clearly establishing that:
(1) His client has, in the course of representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal, except when the information is protected as a privileged communication.
We address each of these provisions below.
DR 4-101(C). DR 4-101 imposes a general obligation of confidentiality on lawyers but exempts in subsection (C)(2) confidences or secrets that the lawyer is required or permitted to reveal under other disciplinary rules and in subsection (C)(3) the intention of a client to commit a crime. We consider initially DR 4-101(C)(3), under which the key inquiry is whether client has disclosed the intention to commit a crime.
In a previous Opinion, No. 76-6, we advised that DR 4-101 (C)(3) did not permit a lawyer to file an affidavit setting forth perjury by a former client in aid of a post-trial motion for relief under Massachusetts Rules of Civil Procedure 60 because the lawyer had not learned of the intention of the "client" to commit a future crime during the course of his representation and, when he did learn of the crime, it was too late to prevent it because the lie had been told and the trial was over. The factual situation in the present inquiry is quite different, for the lawsuit is still in the discovery stage. The "crime" set forth in the inquiry therefore may have a double aspect. The past crime of perjury is clearly involved, for Client's deposition testimony has been completed. However, there is also the possibility the attorney is aware of Client's intention to commit future crimes. One possible crime is a repetition of the perjury at trial. Another possible crime may occur because Client apparently intends to secure a favorable judgment or settlement based on his false deposition testimony. That raises a question of substantive criminal law: will one of the state or federal (see, e.g., 18 U.S.C. S1341, 1343, the mail and wire fraud statutes) criminal statutes relating to wrongful obtaining of the property of another (either by obtaining money to which the client is not entitled or by defeating a rightful claim) apply to this fact situation? Finally, there is a line of cases that suggests that a course of obfuscation by a party can lead eventually to commission of the crime of criminal contempt. Blankenburg v. Commonwealth, 260 Mass. 369 (1927), 272 Mass. 25 (1930), cert. den., 283 U.S. 819 (1931); Katz v. Commonwealth, 379 Mass. 305 (1979); and Miaskiewicz v. Commonwealth, 380 Mass. 153 (1980).
If the lawyer is aware of the client's intention to repeat the perjury, we believe that the lawyer has discretion under DR 4-101(C)(3) to reveal the intention to commit perjury at the trial and the information necessary to prevent it. That permission is not affected by the fact that revealing the intention to commit future perjury is likely to reveal the commission of past perjury. The situation is much the same as when a pharmacist-client reveals that he has put cyanide in the cough medicine bottles in his drugstore and no one has yet purchased any of them. In our view, the fact that the past insertion of the poison may constitute a crime in itself does not prevent the lawyer from revealing the insertion under DR 4-101(C)(3) to prevent the murder of future purchasers of the medicine. Indeed, it has long been held in the substantive evidence law of attorney-client privilege that the intention to commit crime or fraud is not "privileged." See Commonwealth v. Dyer, 243 Mass. 472, 505 (1923), cert. den., 262 U.S. 751; Grieco v. Meachum, 533 F.2d 713, 718 n.4 (lst Cir.), cert. den., 429 U.S. 858 (1976); and especially Oregon v. Phelps, 545 P.2d 901 (Ct. App. 1976).
We do not know enough about the present situation to say whether Attorney has knowledge of Client's intention to commit future perjury. That is a question that Attorney must decide for himself. If he decides that there is sufficient likelihood of future perjury, then he has the discretion granted by DR 4-101(C)(3). If, however, for some reason Attorney believes that the occasion for repetition of the perjury will not arise, then Attorney must decide whether there are other crimes that client intends to commit. On the facts of the inquiry, resolution of that issue of substantive criminal law is not clear. In any event, we are not permitted to give advice with respect to such issues.
Assuming that DR 4-101(C)(3) permits revelation of confidential information, it will probably be necessary for Attorney to reveal the past deposition perjury as part of "the information necessary to prevent the [future] crime," whether it is perjury of cases. On the other hand,
Attorney, when exercising discretion under DR 4-101(C)(3), should reveal the minimum amount of information necessary to prevent the future crime, it is difficult to see how Attorney can prevent future perjury (or future criminal contempt or future criminal deprivation of property if those crimes are involved) without being explicit about the nature of the proposed crime. Clarity sufficient to prevent the future crime seems bound to reveal the past perjury.
One other point should be made with respect to DR 4-101(C)(3). Even though that subsection does not explicitly require that the lawyer make reasonable efforts to talk client out of an intention to commit a crime, it seems quite apparent from the general language of the Disciplinary Rules, including the specific prohibition in DR 7-102(A)(4) against use of perjured testimony, that attorney's initial obligation is to attempt to have client rectify his perjury even if that will have a substantial negative impact on the litigation. See also DR 1-102(A)(5) ("A lawyer shall not engage in conduct that is prejudicial to the administration of justice.")
DR 7-102(B)(1). The second relevant exception to the general requirement of confidentiality imposed by DR 4-101 is contained in subsection (C)(2), which removes the obligation of confidentiality with respect to situations covered by other disciplinary rules. One such rule is DR 7-102(B)(l), which mandates disclosure in some cases. The first question is whether the term "fraud" in DR 7-102(B)(l) includes perjury in the course of an ongoing civil lawsuit. We believe that it does. Client has already committed a fraud on the other party by intentionally misleading him on a material issue. Thus, Client has committed fraud "upon a person or tribunal" during the course of Attorney's representation. If we assume that Client refuses to rectify the fraud, then Attorney has the obligation to reveal it to the other party or to the court unless the information by which attorney learned of the fraud comes within the exception for a "privileged communication."
Whether Client's revelation to Attorney should be treated as a "privileged communication" requires a recitation of some history. When initially adopted by the Supreme Judicial Court, DR 7-102(B)(1) followed the original version of the American Bar Association's Model Code of Professional Responsibility. It contained a mandatory obligation on lawyers to disclose fraud in the course of representation without any exception for "privileged communications." That version caused considerable controversy within the profession because it was unclear whether DR 7-102(B)(l) was meant to override the general duty of confidentiality contained in DR 4-101, as literally it seemed to do. This committee issued formal opinions on a number of occasions indicating its belief that when it applied, DR 7-102(B)(l) did override DR 4-101. See the discussions in our opinions 76-17, 76-28, 77-12 and 78-9.
Moreover, the Supreme Judicial Court alluded to the matter as well. Perhaps the most comprehensive discussion was that of Justice Quirico in his single justice opinion in In Re Mahlowitz. 1 Mass. Atty. Disc. Rep. 189 (1979). After reviewing the wide variety of opinion on the subject, he concluded, in language that went far beyond the limited situation of client perjury during the course of a lawyer's representation, that, "[t]he more persuasive judicial decisions require an attorney to bring material facts to the attention of the court when ignorance by the court is likely to produce an erroneous decision and not just when his opponent is and will remain ignorant." Id. at 194-195.
Our opinions and Justice Quirico's dictum were issued before 1979 when the Supreme Judicial Court amended its rules twice. First, by order of February 14, 1979, it adopted special disciplinary rules governing the conduct of criminal defense lawyers that were based on the American Bar Association's Standards Relating to the Defense Function. One such rule, DF 13(b), defines the obligation of criminal defense counsel who discovers that a client intends to commit perjury. After covering the obligation of the lawyer to attempt to dissuade the client, not to assist the client, and to attempt to withdraw, the Massachusetts version of the rule ends without stating any solution for the lawyer's dilemma when all these fail. An earlier version of the proposal had contained a sentence permitting a lawyer to examine the client in ordinary fashion in such a situation, but that sentence was removed in the final version. The court's announcement, dated February 14, 1979, noted that the Rules Committee and the bar were divided on this issue and that an ABA committee was proposing a revision of its version of DF 13(b). It therefore stated that ''[p]romulgation of a rule on the issue presented by the deleted sentence will await further developments."1
Two months later, however, the Supreme Judicial Court accepted the revision of DR 7-102(B)(l) that had been proposed by the American Bar Association. On May 15, 1979, it issued an order that conditioned the obligation to reveal client fraud in DR 7-102(B)(1) by adding the words "except when the information is protected as a privileged communication." The proximity of the adoption of DF 13(b) and the revision of DR 7-102(B)(l) leaves it quite uncertain whether the Supreme Judicial Court believed that its second order resolved, in both the civil and criminal settings, the doubt left by its first order in the criminal setting or whether in focusing on the whole subject of fraud, it did not perceive that the ABA-recommended language was relevant but ambiguous with respect to the issue with which it had just been struggling. (See also Commonwealth v. Doe, No. 85-302, single justice opinion by Wilkins, J., permitting withdrawal of a criminal defense attorney whose client intended to commit perjury. Justice Wilkins suggested the possibility that in a criminal case an attorney who was not permitted to withdraw might present seemingly perjured testimony in the normal manner, but he expressed doubt about counsel arguing the credibility of the client to a jury in such a situation.)
The ABA Committee on Ethics and Professional Responsibility has not been totally clear either on its interpretation of the proviso to DR 7-102(B)(1) in the case of perjury in an ongoing civil lawsuit. At first, in its Informal Opinion 1314 (March 25, 1975), it drew a distinction between perjury that the lawyer knows about in advance and perjury when the lawyer does not know about it in advance, advising that the lawyer if he does not withdraw must disclose in the former but not the latter case. Later, however, in its Formal Opinion 341 (Sept. 30, 1975), which expansively defined the term "privileged communications," the ABA committee expressly limited the breadth of that interpretation:
The tradition (which is backed by substantial policy considerations) that permits a lawyer to assure a client that information (whether a confidence or a secret) given to him will not be revealed to third parties is so important that it should take precedence, in all but the most serious cases, over the duty imposed by DR 7-l02(B). The many annotations to DR 4-101 reflect this policy. Of course, there will be situations where a lawyer may reveal the secrets and confidences of his client. Some of these are recognized in DR 4-101(C).
The balancing of the lawyer's duty to preserve confidences and to reveal frauds is best made by interpreting the phrase "privileged communication" in the 1974 amendment to DR 7-102(B) as referring to those confidences and secrets that are required to be preserved by DR 4-101.
Such an interpretation does not wipe out DR 7-102(B) ... DR 4-101(C) sets out several circumstances under which revelation of a secret or confidence is permissible, and thus in cases where these exceptions apply, DR 7-102(B) may make the optional disclosure of the information under DR 4-101 a mandatory one. For example, when disclosure is required by a law, the "privileged communication" exception of DR 7-102(B) is not applicable and disclosure may be required.
More recently, the ABA Committee on Ethics and Professional Responsibility has returned to the subject. In explaining the requirement of the proposed new Model Rules that lawyers disclose client perjury if they come to know of it before final judgment, see footnote 1 supra, the committee stated, "This explanation, at least, is consistent with the distinction between information relating to continuing crime, which is not protected by the attorney-client privilege, and information relating to past crime, which is protected. See, e.g., In re Grand Jury Proceedings, 680 F.2d 1026 (5th Cir. 1982), discussing crime/fraud exception to attorney-client privilege." Opinion 87-353, n.3 (1987).
Thus we come to the question whether Massachusetts DR 7-102(B)(1) protects client's disclosure to attorney that he committed perjury during the depositions as "information" that "is protected as a privileged communication." In one sense, this communication fits the paradigm of such information. It represents a confession by client to attorney that he has committed fraud. However, we agree with that part of ABA Opinion 341 that states that the key lies in determining whether one of the exceptions listed in DR 4-101(C) applies. If the client intends to repeat his perjury or to commit one of the other crimes we have mentioned above, then attorney has discretion under DR 4-101(C)(3) to reveal client's intention, even if the disclosure reveals client's past perjury, in order to prevent the commission of future crime.
If DR 4-101(C)(3) applies, then, in our view, client's communications do not fit within the exception contained in DR 7-102(B)(1) for "information protected as a privileged communication." We believe that, whatever definition the Supreme Judicial Court had in mind when it decided to create an exception to DR 7-102(B)(1)'s mandatory disclosure obligation, it did not regard information that a lawyer has discretion to reveal under DR 4-101 (C) as information that is "protected as a privileged communication." The exception in DR 7-102(B)(1) is an exception to a rule imposing a mandatory duty on lawyers. It therefore seems sensible to interpret the exception to mandatory disclosure as covering situations where the Disciplinary Rules or other law (e.g., the attorney-client privilege) imposes confidentiality, but not as covering situations where the Disciplinary Rules themselves remove the bar of confidentiality by giving lawyers discretion to reveal the information. Such an interpretation does not render the proviso to DR 7-102(B)(1) meaningless, even in the case of client perjury, for the exception will still apply to perjured testimony in cases that have been completed and to cases where no future crime is in prospect.
We conclude therefore that under the rules now in effect, Attorney has discretion to reveal the perjury under DR 4-101(C)(3) if Client refuses to correct his lie and if attorney concludes that (1) Client intends to repeat the perjury or (2) the perjury, together with future intended conduct in the litigation, will constitute a new and distinct crime. If DR 4-101(C)(3) is applicable, then DR 7-102(B)(1) makes the duty of disclosure mandatory in this narrow category of cases. On the other hand, if the client does not intend to commit any future crime, then the information about past perjury would be protected as a confidence and excepted from revelation under DR 7-102(B)(1).2
We have not yet addressed Attorney's responsibility if he concludes, after careful reflection, that he is not aware of Client's intent to commit any future crime. We do not mean to suggest that the attorney may in that situation proceed with the litigation in the normal fashion. The attorney knows that the client's past perjury about a material issue is aimed at reaching a result that constitutes fraud. DR 7-102(A)(7) explicitly forbids a lawyer from counseling or assisting his client in "conduct that the lawyer knows to be illegal or fraudulent." In our view, pursuing litigation where the lawyer knows that his client has knowingly and falsely authenticated a document that is material to the case would violate DR 7-102(A)(7). In such a circumstance, attorney must at least withdraw.
At the end of this lengthy opinion, we should note that there are several issues relating to the perjurious client that we have not covered. We have not addressed the question in the context of a criminal prosecution. Even in the civil context, we have not attempted to cover all the possible scenarios. For example, one situation that we have not addressed is the problem of the lawyer who recognizes client perjury at the instant it occurs, but had no forewarning.
In addition, the present inquiry does not raise any question of how much a lawyer needs to "know" to fall within the obligations of DR 7-102(B)(1), which speaks in terms of the lawyer "who receives information clearly establishing" the commission of fraud. Under the facts of this opinion the client has admitted the perjury. A different, and much more difficult issue, will be presented if no such admission is made. We express no opinion on that matter.
Finally, we should state that insofar as there are constitutional issues relating to the Fifth Amendment's privilege against self-incrimination or particular provisions of the Massachusetts Constitution, we also express no view since those issues relate to questions of substantive law that our rules forbid us from addressing. But see Nix v. Whiteside, 475 U.S. 157 (1986).
The problem of client perjury has been most troublesome for lawyers in this commonwealth not only because the specific issues are difficult to resolve but also because the Disciplinary Rules do not address the problem clearly and explicitly. Lawyers must do the best they can to infer the correct answers from rules that speak in general terms about "crime" and "fraud" and even then not clearly. In our view, the intimations from the Supreme Judicial Court have been so ambiguous, the controversy over the proper interpretation of these rules has been so great, and the possible resolutions--mandatory disclosure, discretionary disclosure, or withdrawal without disclosure--so contradictory, that no lawyer should be disciplined for adopting any of these positions until the Supreme Judicial Court has spoken with finality on the issue.3
The Supreme Judicial Court recently rejected wholesale adoption of the Model Rules of Professional Conduct. In so doing, the court specifically left open the possibility of addressing particular problems not adequately resolved in the current rules. This is such a problem. Ever since its organization 15 years ago, this committee has received numerous inquiries with respect to the issues discussed in this opinion and related issues. The advice we have given in this opinion is not necessarily our conclusion as to the best resolution of the problem of the perjurious client. Our advice is based on our view of the most sensible way to interpret the current Disciplinary Rules, which cover perjury simply as a subset of rules dealing with "crime" and "fraud." The perjury problem ought to be dealt with explicitly and we urge the Supreme Judicial Court to do so.
1 In fact, the ABA committee did not propose a revision of DF 13(b) because of the pending promulgation of the Model Rules of Professional Conduct. Massachusetts has not adopted those rules, which do contain a mandatory obligation to disclose client perjury when discovered by the lawyer in the course of litigation, a duty that continues "to the conclusion of the proceeding." Rules 3.3(a)(2) and (4) and 3.3(b).
2 We have deliberately couched our opinion in the specific language of the Disciplinary Rules, for if the Supreme Judicial Court were ever to adopt the dictum of Justice Quinco in In re Mahlowitz, quoted above, as a statement of the common law of professional responsibility, then it would be automatically incorporated into the Disciplinary Rules under DR 4-101(C)(2).
3 We should also point out that Bar Counsel has expressed the view that the Massachusetts Disciplinary Rules do not permit the disclosure by a lawyer of potential fraud on a court that would be required under proposed Model Rules of Professional Conduct. See, Klubock, When Your Client Is About to Commit Fraud. Massachusetts Lawyers Weekly, June 20, 1988, p.5. Bar Counsel apparently takes the position that not only would the lawyer not be required to disclose under DR 7-102(B)(1) but also that he would not even be permitted to disclose under DR 4-101(C)(3). Bar Counsel's article, however, does not address the situation of the lawyer who knows that the client intends to repeat the perjury.

Permission to publish granted by the Board of Delegates on January 29, 1989. As stated in the rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.