If a lawyer learns mid-case that the client's personal-injury accident was faked, may the lawyer withdraw, and may the lawyer report what the client said?

Plain-English summary

The inquiry asked whether a lawyer must continue representing a client in a personal-injury case after learning the accident was fraudulently conceived and effected, and whether the lawyer may disclose to a grand jury or prosecutor information gained from the client before learning of the fraudulent motive.

All committee members agreed the lawyer may withdraw, either by returning the file if no action has been instituted or, if the action has been filed, by obtaining the client's agreement and filing an appropriate motion. He may withdraw even if the client does not agree, and need give no specific reason beyond stating that he does not wish to continue because of the existing circumstances; if the client insists on reasons, he may give them even if the matter is then before the court. On disclosure, the committee said whether the lawyer may reveal information received from the client is essentially a question of law, not ethics, outside its jurisdiction. It referred to Canons 29 and 37 and to Drinker's Legal Ethics, observing that a lawyer has a duty to disclose confidential information where necessary to prevent a contemplated crime or fraud, but that where the crime or fraud has already been frustrated or completed and the lawyer learns of it through confidential communications, the attorney-client relationship generally prevents disclosure. It cited Queen v. Cox and Clark v. U.S. as cases of interest.

Currency note

This opinion was issued in 1963, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 29, 37, 41, and 44 of the Canons of Professional Ethics; confidentiality is now addressed by Rule 4-1.6, withdrawal by Rule 4-1.16, and the lawyer's duty of candor to a tribunal by Rule 4-3.3 of the Rules Regulating The Florida Bar (Model Rules 1.6, 1.16, and 3.3). The Bar's own note states that an attorney's obligations to reveal information to the court are governed by Rule 4-3.3. The treatment of client crime or fraud under the current confidentiality rule differs from the framework described here, so the disclosure analysis in particular should not be relied on as current. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer withdraw after learning the client's injury claim is fraudulent?

A: Yes. All committee members agreed the lawyer may withdraw, by returning the file before suit or moving to withdraw after suit, even over the client's objection.

Q: Does the lawyer have to explain why he is withdrawing?

A: No. The lawyer need give no specific reason beyond declining to continue under the circumstances, unless the client insists on reasons, in which case he may give them.

Q: Could the lawyer report the client's fraud to a grand jury or prosecutor?

A: The committee treated that as a question of law outside its ethics jurisdiction. It observed only that confidentiality generally prevents disclosure of a crime or fraud already completed or frustrated, as distinct from one not yet committed. Note that current disclosure obligations are governed by Rules 4-1.6 and 4-3.3, which should be consulted directly.

Background and rules framework

The opinion applied former Canons 29, 37, 41, and 44 of the Canons of Professional Ethics, which concerned upholding the law, confidences of the client, and withdrawal. Those subjects are now addressed by Rule 4-1.6 (confidentiality), Rule 4-1.16 (declining or terminating representation), and Rule 4-3.3 (candor toward the tribunal) of the Rules Regulating The Florida Bar (Model Rules 1.6, 1.16, and 3.3). The committee separated the ethics question it could answer (withdrawal) from the legal question it declined (whether disclosure is permitted).

Citations and references

Rules of Professional Conduct:

• Canons 29, 37, 41, 44 [Canons of Professional Ethics; see current Rules 4-1.6, 4-1.16, 4-3.3]

Cases:

• Clark v. United States, 289 U.S. 1 (1933): cited as a case of interest on privilege and fraud
• Queen v. Cox, 14 Q.B.D. 153 (1884): cited as a case of interest on privilege and fraud

Other authorities:

• Drinker, Legal Ethics, p. 131 et seq.

See also

• FL Bar Ethics Op. 65-50: Confidence of an Undisclosed Surviving Spouse
• FL Bar Ethics Op. 66-39: Substituting Counsel After a Prior Settlement
• FL Bar Ethics Op. 69-9: Withdrawal Over an Inadequate Appellate Fee

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-63-23/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-63-23.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 63-23
October 2, 1963
Advisory ethics opinions are not binding.
If in the course of representation in a personal injury action the attorney learns the subject accident was fraudulently conceived or effectuated he may withdraw from the case. No specific reason need be given unless the client insists. Whether or not the attorney may disclose to a grand jury or prosecutor information received from the client is not a question of ethics.
Note: An attorney's obligations to reveal information to the court are governed by Rule 4-3.3, Rules Regulating The Florida Bar.
Canons: 29, 37, 41, 44
Cases: Clark v. U.S., 289 U.S. 1 (1933); Queen v. Cox, 14 Q.B.D. 153 (1884)
Vice-Chairman Smith stated the opinion of the committee:
Essentially, the inquiry is, if a member of The Florida Bar must continue representation of a client in a personal injury case upon learning that the subject accident was fraudulently conceived and effected and, further, whether he may disclose to a grand jury or prosecuting officer information gained from the client in the course of the attorney-client relationship before learning of the fraudulent motive.
All Committee members agree that he may withdraw from the case either by returning the file, if action has not been instituted, or by obtaining the client's agreement and filing an appropriate motion, if the action has been filed. He may so withdraw even if the client does not agree. He need not give a specific reason other than to say he does not wish to continue the representation because of the existing circumstances. However, if the client insists upon receiving reasons, he may give them even if the matter is then before the Court.
Whether he may disclose information received from the client while employed is essentially a question of law, not ethics. Jurisdiction of this Committee does not extend to legal matters and we express no opinion in that regard. Further, much depends upon the information he has received and, of course, we are not advised in that regard. Reference is made to Canons 29 and 37 of the Canons of Professional Ethics and to Drinker, Legal Ethics, page 131 et seq. It is clear that a lawyer has the duty to disclose confidential information where disclosure is necessary to prevent a contemplated crime or fraud. However, when the possibility of crime or fraud has already been frustrated or when the crime or fraud has been completed, and the attorney then learns of it through confidential communications, the attorney-client relationship generally prevents disclosure of the information acquired. Cases which may be of interest include Queen v. Cox, 14 Q.B.D. 153 (1884), and Clark v. U.S., 289 U.S. 1 (1933).