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sunEthics |
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TO REVEAL OR NOT TO REVEAL CLIENT CONFIDENTIAL INFORMATION (OR IS IT BETTER TO WITHDRAW AND SUFFER THE SLINGS AND ARROWS . . .) Practicing attorneys, particularly those who are involved in family law, criminal law or litigation matters, may confront difficult ethical dilemmas in determining what action to take when the attorney obtains confidential information from or about the client that involves a potential or actual crime, fraud, or other serious misconduct. In these circumstances, the attorney’s obligation to zealously advocate on behalf of the client and maintain client confidentiality conflicts with the duties and responsibilities of the attorney as an officer of the court to uphold the integrity of the judicial and legal system. The obligation of an attorney to preserve the confidences of a client is considered to be of paramount importance and may be breached only in very limited circumstances. Rule 4-1.6(a) states the general rule that an attorney is prohibited from revealing confidential information related to the representation, however, under certain limited circumstances the attorney may be permitted or required to reveal information that may be considered to be attorney/client confidential and privileged. The attorney must reveal confidential information if he or she reasonably believes the disclosure is necessary to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another. (see Rule 4-1.6(b)) The attorney is responsible for determining the method and extent of the disclosure and has an obligation to assess the seriousness of any harm threatened and whether the client is capable of carrying out the threat. If the threat is credible and may result in death or substantial bodily harm, the attorney is required to disclose the information, however, the attorney should make every effort to restrain or otherwise counsel the client not to follow through on the threat and disclosure should be made only if “reasonably necessary” to prevent the client from committing a crime and/or prevent a death or substantial bodily harm to another. (See Florida Bar Ethics Op. 59-23). Another ethical dilemma may occur when the attorney learns that the client or a witness intends to provide materially false testimony or information. Rule 4-3.3(a)(4) prohibits an attorney from permitting any witness to offer testimony or other evidence that the attorney knows to be false. The rule further prohibits the attorney from offering false testimony in the form of a narrative from the witness and requires the attorney to take reasonable remedial measures if he or she later learns of the falsity of previously proffered material evidence. The Comment to the rule states that the attorney should attempt to dissuade the client from offering the evidence or, if the evidence has already been offered, advise the client that the nature of the false evidence must be disclosed. If the client refuses to agree to the disclosure, the attorney is then required to take the appropriate remedial measures. If the attorney determines that he or she must take remedial action after learning that the client has committed a fraud, the nature and extent of the remedial action depends on the facts. As was previously discussed, upon learning of the intent of the client to offer false evidence, the attorney should counsel the client not to offer the false evidence, or, if already offered, that its false character be immediately disclosed. If the attorney is unsuccessful in dissuading the client, he or she should then consider disclosing the deception to the court or opposing counsel, or both. (See Florida Bar Ethics Op.75-19). The Comment to Rule 4-3.3 states that, if the attorney is unsuccessful in dissuading the client from presenting false evidence, he or she should make the appropriate disclosure and then withdraw from representation, if that will remedy the situation. Rule 4-1.16(b) permits an attorney to withdraw if the client persists in a course of action involving the attorney’s services that the attorney believes is criminal or fraudulent or if the client has used the lawyer’s services to perpetuate a crime or fraud, however, Rule 4-1.16(c) requires the attorney to continue representing the client if ordered by the judge, even if there is good cause for terminating the representation. Rule 4-1.16(d) requires that the attorney take reasonable steps to protect the client’s interests, including giving reasonable notice to the client, allowing time to obtain another attorney, returning papers and property of the client, and refunding any unearned fees and costs. |
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