The Wayward Client

Vol. 28 No. 2

By

Marcia L. Proctor is the principal in Proctor Legal Consulting, PLLC, in Dansville, Michigan.

What does a lawyer do when clients lie? Or disobey orders of the court? Or threaten to engage in illegal or fraudulent conduct? Or blurt out an intention to commit bodily harm to themselves or another?

When choosing a course of action, the lawyer’s duties to the client, to the administration of justice, to third parties, and sometimes to the lawyer him- or herself may conflict. Following are the ABA Model Rules of Professional Conduct (RPC) that apply to wayward clients.

Model Rule overview. The “core” rules relevant to resolving professional duties in handling wayward-client situations are RPC 1.2, 1.4, 1.6, 1.16, and for situations before a tribunal, RPC 3.3. RPC 1.2 and 1.4 address a lawyer’s duties to fully counsel clients, including counseling clients about the lawyer’s professional duties and the way these duties may affect the client. RPC 1.6 addresses the circumstances where a lawyer has discretion to reveal information related to the representation and the circumstances where the lawyer has no discretion and must protect the representation. RPC 3.3 applies in matters before a tribunal and addresses circumstances where a lawyer has no discretion but is required to reveal certain information. RPC 1.16 addresses whether a lawyer may fulfill or be relieved of professional obligations by withdrawing from representation.

Application of the Model Rules. You suspect the client of illegal acts. A lawyer represented the husband in divorce proceedings in which it was alleged that the wife had engaged in an extramarital affair with a companion. The divorce action was settled during trial, about four years ago, and the lawyer’s representation of the husband ceased at that time. Subsequently, the wife retained the lawyer’s services in an effort to collect money that the wife had allegedly loaned to the companion. In the course of settlement discussion, the companion told the lawyer that the “loan” was, in fact, an effort by the wife to hide assets that otherwise would have been subject to the divorce proceedings. Upon hearing this, the lawyer withdrew from representation of the wife.

May the lawyer disclose the information to the former client husband? At the present time, all the lawyer has are statements from the opposing party’s companion; the lawyer does not have the requisite “knowledge” of any improper conduct by the client.

The lawyer’s first duty is to counsel the client wife, as required under RPC 1.2 and 1.4. Disclosure of information gained from representation of the wife, even though conveyed by the opposing party’s companion and not covered by attorney-client privilege, is, nevertheless, protected from disclosure under RPC 1.6. The wife had not been consulted about the accusation and thus has not consented to any disclosure, and none of the discretionary exceptions in RPC 1.6(b) apply.

Absent consent, the lawyer may not make any disclosure that would be adverse to the interests of the wife without running afoul of conflict rules. RPC 1.8(b) prohibits using the information to the disadvantage of a current client, and RPC 1.9(c) prohibits disclosures of information protected by RPC 1.6 when doing so would be to the disadvantage of former clients.

You suspect perjury at deposition. The client discharges a lawyer on the day following the client’s deposition testimony, which was not completed and was adjourned to a later date. The lawyer is concerned that the client made two statements that could possibly be considered perjured testimony. The lawyer is not absolutely certain the client testified falsely, although the lawyer has more than a mere suspicion that the client has done so.

Does the lawyer have a duty/permission to correct the deposition or to advise the tribunal of the former client’s actions? If a client has presented material false testimony at a deposition, under RPC 3.3(a)(3) the lawyer shall take “reasonable remedial measures” to correct the false testimony. However, where the lawyer is not certain the deposition testimony was false, there is no duty to correct or rectify. A lawyer’s “suspicion” is not sufficient to reach the standard of “knows to be false”; similarly, where a client’s testimony is inconsistent, and the lawyer has no “knowledge” that the inconsistency is material and, in fact, false, no duty is triggered. If the lawyer’s duty to rectify had been triggered under RPC 3.3(a)(3), it is important to note that under RPC 3.3(c) the duty continues to the conclusion of the proceeding.

The client may be violent. A client has threatened violence to him- or herself or to someone else. Any person connected with a representation, whether client, opposing party, or third party, who displays or communicates a threat of violence should be taken seriously. May a lawyer tell someone about the threat? RPC 1.6(a) permits disclosure of confidences and secrets with the consent of the client, and RPC 1.6(b) permits disclosure without consent of the client “to prevent reasonably certain death or substantial bodily harm.” Because a disclosure is discretionary, and not mandated, a lawyer may wish to further consider whether disclosure should be made. This is determined in part by whether the lawyer believes the threat.

Fully counsel the client. Overarching any wayward-client situation is the lawyer’s duty to consult with the client. RPC 1.4(b) requires the lawyer to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” This duty includes advising a client that the lawyer will not assist the client, that the lawyer may withdraw from representation, and that the lawyer may disclose information about the client when, in fact, these factors are present. RPC 1.2 requires a lawyer to fully advise a client about the representation, which would normally include advice about appropriate ways the client can deal with issues as they arise during the representation. RPC 1.2(d) forbids a lawyer from counseling or assisting a client in conduct the lawyer “knows” is criminal or fraudulent, and RPC 1.4(a)(5) requires a lawyer to tell a client when assistance violates ethics rules.

The first step of counseling should be to persuade the client to change ongoing conduct and correct past conduct during which the lawyer’s services have been used. If the lawyer’s powers of persuasion fail, the lawyer should fully advise the client regarding the lawyer’s ethical duties.

RPC 1.6(b) permits disclosure if the lawyer’s services have been used to further the client’s illegal or fraudulent act and only if the crime or fraud is “reasonably certain to result in substantial injury to the financial interests or property of another.”

If a matter has been filed before a tribunal, the lawyer may no longer have discretion, but may, in fact, have a duty to disclose the client’s conduct. A lawyer’s duty to adequately counsel a client under RPC 1.2 requires the lawyer to alert the client to the possibility of disclosure if the client does not voluntarily cease and rectify the misconduct. RPC 3.3(b) clarifies that laws and rules governing confidences and secrets do not abrogate the lawyer’s affirmative duties to disclose when a matter is before a tribunal.

Withdrawal. RPC 1.16(a) forbids a lawyer from undertaking representation and requires a lawyer to withdraw if the representation will result in violation of a rule. RPC 1.16(b) permits withdrawal from representation when the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent. 

 

FOR MORE INFORMATION ABOUT THE SECTION OF FAMILY LAW

- This article is an abridged and edited version of one that originally appeared on page 36 of Family Advocate, Fall 2010 (33:2).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.

- Website: www.abanet.org/family.

- Periodicals: Family Advocate, quarterly magazine with three issues that include how-to articles and current trends in family law for lawyers, and a fourth “Client Manual” issue for lawyers and their clients covering aspects of the divorce process; Family Law Quarterly, a scholarly journal that offers an analytical view of family law issues, including “Family Law in the Fifty States.”

- Books and Other Recent Publications: Divorce in the Golden Years: Estate Planning, Spousal Support, and Retirement Issues for Clients at Midlife and Beyond; 101+ Practical Solutions for the Family Lawyer, 3d ed.; The 1040 Handbook: A Guide to Income and Asset Discovery, 5th ed.; The Special Needs Child and Divorce: A Practical Guide to Evaluating and Handling Cases; The Family Lawyer’s Guide to Bankruptcy, 2d ed.; The Indian Child Welfare Act Handbook, 2d ed.; The Military Divorce Handbook; Assisted Reproductive Technology; How to Build and Manage a Family Law Practice; The Divorce Trial Manual.

- CLE and Other Educational Programs: The ABA Family Law Trial Advocacy Institute offers an intense learning experience and is the nation’s premier trial training program for family lawyers. Other CLE programming includes teleconferences, spring and fall conferences, and our popular Hot Tips/Top Strategies program at the ABA Annual Meeting. Past program materials are available for purchase on our website.

- Member Benefits: Discount on Family Law Section publications and CLE materials; committees on topics such as adoption, assisted reproductive technologies, custody, and law practice management; Case Update, a monthly digest of family law case decisions around the nation; monthly eNewsletter.

 

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