Gabriele Lincoln is one of the busiest litigators in his small Ohio town. He has amassed a great reputation in the courtroom, but his best quality is his honesty, which has garnered him the nickname “Honest Gabe.” Most of Gabe’s cases are car accident cases. One of his clients is Jan Cook, a local newspaper writer, who was rear-ended on her way home from work. Gabe is confident that he will receive a recovery from the other driver in the accident because liability was clearly established by the rear-end collision. Thus, the only issue is the extent of Jan’s damages, including an injury to Jan’s lower back. Gabe’s confidence in the case grows after Jan’s deposition. In the deposition, Jan testified that she never had been in a car accident before and had never suffered any injury to her back. Pleased with the deposition, Gabe diligently begins preparing the settlement demand to opposing counsel. In reviewing the file to prepare the demand letter, Gabe discovers the questionnaire he normally has his clients complete. Jan’s client questionnaire reveals that she was involved in another car accident, five years previous, in which she had injured her lower back. Gabe immediately schedules a meeting to discuss this inconsistency with Jan and she acknowledges the prior car accident. She bluntly tells Gabe that she listed the prior accident on the questionnaire because she knew Gabe had to keep it confidential. Jan has a problem with fabrication. Jan further states she has no intention of revealing the earlier injury to the opposing lawyer and party because she is afraid it will ruin her lawsuit. Jan stresses to Gabe that she really needs the money from the lawsuit, does not want to drop it, and does not want to disclose the prior car accident or injury to her back.
Generally, Ohio Rule of Professional Conduct 1.6(a) prohibits a lawyer from revealing information relating to the representation of a client unless the client gives informed consent. Other conduct rules, however, may subordinate the lawyer’s duty of confidentiality to obligations of candor to the tribunal and truthfulness as statements to others1. Where a client engages in fraudulent conduct affecting the tribunal and offers material evidence that is discovered to be false, the lawyer must not knowingly fail to rectify the fraud. Such rectification, as a final resort, may require disclosure of a client confidence to the tribunal2.
Disclosure is not the first step in resolving this type of ethical dilemma. The lawyer is required to attempt to persuade the client to rectify the misconduct3. Additionally, the lawyer must advise the client that he or she will have to rectify the record if the client fails to do so. If the client fails to correct the fraud, the lawyer is required by Rule 3.3 and 4.1 to take reasonable remedial measures. The lawyer is also given grounds to withdraw from the case under Rule 1.16(b)4. Upon withdrawal, the lawyer can disavow any positions taken by the lawyer that were based on the client’s misrepresentations. When a client uses a lawyer’s services to commit a fraud, however, withdrawing alone does not remedy the situation. Rule 3.3 or 4.1 requires a lawyer to disclose a client’s fraud to the extent necessary to avoid assisting the fraud even if the client information is protected by Rule 1.6.
Thus, in the situation of Honest Gabe representing Jan, Gabe knows of Jan’s false testimony and must disclose Jan’s material misrepresentations to the court and/or to opposing counsel if she fails to rectify the situation. The duty of candor to the tribunal trumps the duty of confidentiality in this situation