Rectifying Client Fraud

One of the greatest ethical dilemmas for any lawyer arises when he or she comes to know that a client has offered false evidence or is engaged in ongoing illegal or fraudulent acts. Ohio Rule of Professional Conduct 1.6(a) generally prohibits revealing information relating to a lawyer’s representation of a client unless the client gives informed consent or disclosure is impliedly authorized. Although the duty of confidentiality is essential to the client-lawyer relationship, at times it is trumped by a lawyer’s obligation of candor to the tribunal or duty to refrain from assisting an ongoing wrongful act by a client1.

Therefore, in situations in which a client provides false evidence affecting the tribunal or engages in ongoing or future illegal or fraudulent acts, the lawyer is obligated to take reasonable remedial measures. The lawyer should proceed by taking the following steps:

• Confidentially attempt to persuade the client to withdraw the false evidence or refrain from the wrongful conduct.

• During the confidential meeting, advise the client that the attorney has an ethical obligation to disclose the false testimony or to avoid assisting in the wrongful conduct, if the client fails to comply.

• In the case of false evidence, if the client fails to withdraw it, the lawyer must take further action, including making reasonably necessary disclosure to the tribunal to remedy the situation2.

• To avoid assisting ongoing illegal or fraudulent client acts, if the lawyer can not persuade the client to refrain from the wrongful conduct, the lawyer often can avoid assisting conduct by seeking withdrawal from representation of the client. If withdrawal is not sufficient to avoid furthering the client misconduct, the lawyer has an obligation to reveal the ongoing wrongful conduct to the extent necessary to avoid assisting the client in the activity3.

Footnotes

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1. See, Prof. Cond. Rules 3.3. and 4.1.

2. See, Prof. Cond. Rule 3.3, Comment [10].

3. Prof. Cond. Rule 4.1, Comment[3].

For more information on this topic contact Alvin Mathews at 614.227.2312. or visit our Legal Ethics and Professional Responsibility Resource Center.

This document has been prepared as a general reference for careful lawyers and their staff for informational purposes. The information contained herein is not intended to be and should not be construed as legal advice. Each circumstance should be considered and evaluated separately, and possibly with involvement of legal counsel.

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