Summary: If a lawyer appointed by the
court to represent an indigent criminal defendant comes to know
that his client filed an intentionally false affidavit of
indigency, the lawyer may choose to serve without compensation. If
he chooses not to do so, and the client refuses to rectify the
fraud, the lawyer must seek to withdraw in accordance with the Rule
3.3(e) procedure and disclose the fraud in connection with his
motion.
Facts: Prior to Lawyer's appointment,
Client submitted an affidavit to the court claiming that he was
indigent in order to obtain the appointment of an attorney in a
criminal matter. In the course of discussion with client, Lawyer
has come to know that in fact Client is not indigent and that
Client knew that fact when he filed the affidavit. Lawyer inquires
about his responsibility with respect to the false affidavit.
Discussion: The Committee has
previously addressed the same issue in Opinion 76-17 and Opinion
91-6, both decided under the Canons of Ethics and Disciplinary
Rules in effect prior to 1998. Those Opinions focused on DR
7-102(A)(7), which prohibited a lawyer from assisting a client in
conduct that the lawyer knew was fraudulent, and DR 7-102(B)(1),
which required a lawyer to reveal a fraud committed by the client
in the course of representation to the affected person. The
Committee advised that, unless the lawyer was willing to serve
without compensation, the lawyer must seek to withdraw and disclose
the client's fraud to the court.
In this Opinion, we address whether a lawyer has the same
obligations under the Massachusetts Rules of Professional Conduct
in effect since 1998. Several rules are involved in our
analysis, including: Rule 3.3, which governs candor towards a
tribunal; Rule 1.2(d), which prohibits a lawyer from counseling or
assisting a client in conduct the lawyer knows to be criminal or
fraudulent; and Rule 4.1(b), which requires a lawyer to reveal
information necessary to avoid assisting a client's criminal or
fraudulent act.
We assume that when the inquiring Lawyer states that he "knows"
that Client is not indigent and that Client knew that fact when he
filed his affidavit, Lawyer is stating that he has met the "firm
basis in fact" standard of knowledge set forth in Commonwealth v.
Mitchell, 438 Mass. 535 (2003). When a lawyer discovers that a
client has given material evidence before a tribunal and the lawyer
comes to know of its falsity, Rule 3.3(a)(4) requires the lawyer to
take "reasonable remedial measures". The Committee believes that
Rule 3.3(a)(4) applies to information submitted in a pre-trial
affidavit as well as to testimony at trial. If the client's
affidavit gives false information about his assets and that
information is likely to affect the court's determination of
indigency, then we believe that the client has given materially
false evidence within the meaning of Rule 3.3(a)(4).
Similarly, Rule 3.3(a)(2) provides that a lawyer must disclose
material information to the tribunal when disclosure is necessary
to avoid assisting a criminal or fraudulent act by the client.
Obtaining free legal services from the government by submitting
false information about indigency is undoubtedly fraudulent and,
although the Committee does not give advice about substantive law,
it may also be criminal. We also believe that a lawyer who submits
an invoice to a government agency for compensation, knowing that
the client is not indigent, is assisting the client in the fraud.
See Rule 3.3, Comment [2A]. We reached the same conclusion in
Opinions 76-17 and 91-6.
Rule 3.3(a) is a specific application of the more general rule,
found in Rule 1.2(d) that a lawyer must not counsel or assist a
client in conduct that the lawyer knows is criminal or fraudulent.
Rule 3.3(a)(4) is a specific application of Rule 4.1(b), which
requires a lawyer to disclose material information to third parties
when necessary to avoid assisting the client's criminal or
fraudulent act. Both Rules 3.3(a)(2) and 3.3(a)(4) are, however,
subject to an exception for cases governed by Rule 3.3(e), which
applies in criminal cases when the lawyer knows that the defendant
intends to testify falsely. The Comment to Rule 3.3 suggests that
the same exception applies when the lawyer discovers after the fact
that the client has given false testimony. There was no provision
in the former Canons of Ethics or Disciplinary Rules comparable to
Rule 3.3(e). We therefore address whether Rule 3.3(e) requires us
to modify the advice that we have previously given.
Rule 3.3(e) provides:
In a criminal case, defense counsel who knows that the
defendant, the client, intends to testify falsely may not aid the
client in constructing false testimony, and has a duty strongly to
discourage the client from testifying falsely, advising that such a
course is unlawful, will have substantial adverse consequences, and
should not be followed. If a lawyer discovers this intention before
accepting the representation of the client, the lawyer shall not
accept the representation; if the lawyer discovers this intention
before trial, the lawyer shall seek to withdraw from the
representation, requesting any required permission. Disclosure of
privileged or prejudicial information shall be made only to the
extent necessary to effect the withdrawal. If disclosure of
privileged or prejudicial information is necessary, the lawyer
shall make an application to withdraw ex parte to a judge other
than the judge who will preside at the trial and shall seek to be
heard in camera and have the record of the proceeding, except for
an order granting leave to withdraw, impounded. If the lawyer is
unable to obtain the required permission to withdraw, the lawyer
may not prevent the client from testifying. If a criminal trial has
commenced and the lawyer discovers that the client intends to
testify falsely at trial, the lawyer need not file a motion to
withdraw from the case if the lawyer reasonably believes that
seeking to withdraw will prejudice the client. If, during the
client's testimony or after the client has testified, the lawyer
knows that the client has testified falsely, the lawyer shall call
upon the client to rectify the false testimony and, if the client
refuses or is unable to do so, the lawyer shall not reveal the
false testimony to the tribunal. In no event may the lawyer examine
the client in such a manner as to elicit any testimony from the
client the lawyer knows to be false, and the lawyer shall not argue
the probative value of the false testimony in closing argument or
in any other proceedings, including appeals.
The text of Rule 3.3(e) focuses on testimony by the defendant at
trial. Comment 7 notes that the purpose of Rule 3.3(e) is "to
accommodate special constitutional concerns in a criminal case by
providing specific procedures and restrictions to be followed in
the rare situations in which the client states his intention to, or
does, offer testimony the lawyer knows to be perjured in a criminal
trial." Comment 9 states that "the lawyer may not stand in
the way of the client's absolute right to take the stand and
testify." Given Rule 3.3(e)'s purpose to protect the client's right
to testify in his or her own defense, it is possible to argue that
the Rule should also extend to pretrial affidavits or testimony
that relates to matters that will be involved at trial, such as a
motion to suppress evidence on search and seizure grounds. That
issue is not, however, involved in this inquiry.
The affidavit of indigency involved in this inquiry is not
related to the client's trial testimony. It relates solely a matter
that is ancillary to the defendant's guilt or innocence, the
defendant's entitlement to a court-appointed lawyer. While a client
may have "an absolute right to take the stand and testify," as
Comment 9 notes, a client does not have an absolute right to obtain
a lawyer free of charge when he or she is not indigent. Moreover,
nothing in Rule 3.3(e) permits a lawyer to assist a client's
perjured testimony by accepting compensation based on an
intentionally false affidavit. We conclude, therefore, that Rule
3.3(e) does not apply to a fraudulent affidavit of indigency.
If the exception contained in Rule 3.3(e) is not applicable, the
general principles set forth in Rule 3.3 apply. Lawyer must first
advise Client of the consequences and attempt to persuade Client to
deal with the
false affidavit, perhaps withdrawing it. Advising Client of the
consequences includes explaining any penalties that Client might
incur if the court discovers Client's fraud. The fact that there
may be such penalties, however, does not excuse Lawyer from urging
Client to rectify the fraud.
If Client refuses to rectify the fraud, Lawyer may not apply to
the court for compensation for his time and expenses. To do so
would be assisting in Client's fraud. Lawyer may decide to proceed
without compensation, as this committee suggested in its Opinions
76-17 and 91-6. If Lawyer is not willing to proceed without
compensation, then Lawyer must seek permission to withdraw from the
representation, disclosing the fraud to the court as required by
Rules 3.3(a)(2) and (4) as we previously concluded in Opinions
76-17 and 91-6. In so doing, Lawyer should attempt to withdraw by
motion to a judge other than the judge assigned to the matter,
following, by analogy, the procedure outlined in Rule 3.3(e) to
protect the confidentiality of Client's information. See also
Purcell v. District Attorney, 424 Mass. 109 (1997).
The changes to the Rules of Professional Conduct made in 1998
raise one further issue. If Lawyer decides to proceed without
compensation in the matter, does that sufficiently remedy Client's
fraud so that the lawyer may proceed in the matter without explicit
disclosure to the court of the false information in the affidavit
of indigency? The Supreme Judicial Court adopted special
Massachusetts Comment 2A to discuss the notion of what constitutes
assisting fraud for purposes of this Rule. Comment 2A provides:
Comment 3 to Rule 4.1 states the general rule that the word
"assisting" refers to that level of assistance that would render a
third party liable for another's crime or fraud, i.e., assistance
sufficient to render one liable as an aider or abettor under
criminal law or as a joint tortfeasor under principles of tort and
agency law. However, the concept of assisting has a special meaning
in Rule 3.3 because it deals with a lawyer's conduct before a
tribunal. The term assisting in Rule 3.3 is not limited to conduct
that makes the lawyer liable as an aider, abettor or joint
tortfeasor. Rule 3.3(a) is intended to guide the conduct of the
lawyer as an officer of the court as a prophylactic measure to
protect against the contamination of the judicial process. Thus,
for example, a lawyer who knows that a client has committed fraud
on a tribunal and has refused to rectify it must disclose that
fraud to avoid assisting the client's fraudulent act.
The last sentence of Comment 2A requires disclosure of the fraud
to the court when the client has refused to rectify it. It is
possible to read the Comment as not permitting Lawyer to proceed
without explicit disclosure of the fraud even if Lawyer is willing
to represent Client without compensation. The Client's fraud, so
the argument goes, consists not only of obtaining governmental
funds for Lawyer's services when Client is not indigent, but it
consists also of leading the court to believe that Client is
indigent, for whatever effect that may have on the trial and
perhaps on other proceedings in this or other matters.
The Committee does not believe that Comment 2A requires it to
withdraw the advice it has twice given under former versions of the
disciplinary rules. The basis of our previous advice was that the
fraud consisted of the client getting a lawyer free of charge by
means of a false affidavit. We concluded that service without
compensation rectified the fraud. Since we regard the fraud as
having been rectified, we believe that a duty to disclose the fraud
does not arise. We are not prepared to change the advice we
gave without clearer direction from the SJC that fraud in this
circumstance means something more than the client getting a free
lawyer. We therefore reaffirm our previous Opinions 76-17 and
91-6.
This advice is that of a committee without official
government status
This opinion was approved for publication by the
Massachusetts Bar Association's House of Delegates on January 20,
2011.