What must appointed counsel do when an indigent client gets money after filing an indigency statement to obtain free representation?
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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer was appointed to represent a criminal defendant whom the court had found indigent. The lawyer later learned from the client that the client had received funds after filing the statement of indigency, meaning the client was obtaining publicly funded legal services to which he was no longer entitled. The committee treated this as a fraud the client had perpetrated in connection with the representation.
The committee concluded that the lawyer must first call on the client to rectify the situation. If the client refuses, the lawyer must take one of two paths: reveal the fraud to the court, or notify the court that the lawyer is willing to continue representing the client without compensation from public or otherwise restricted funds. The second path lets the lawyer protect the client's confidence about the funds while ending the fraud on the public fisc, because the lawyer no longer draws on funds the client is not entitled to have spent on his behalf.
The committee reached this result under DR 7-102(B)(1) and expressly reaffirmed its earlier Opinion 76-17, which had reached the same conclusion under a former version of that rule.
Currency note
This opinion was issued in 1991, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: What must appointed counsel do if the client is no longer indigent?
A: The committee said the lawyer must first call on the client to rectify the fraud of receiving free legal services to which he is no longer entitled.
Q: What if the client refuses to rectify it?
A: The committee said the lawyer must then either reveal the fraud to the court or notify the court that the lawyer will continue the representation without compensation from public or restricted funds.
Q: Does continuing without public pay satisfy the lawyer's duty?
A: Under the opinion, yes. Telling the court the lawyer will continue without drawing on public funds was offered as an alternative to revealing the fraud, ending the improper use of public funds.
Background and rules framework
The opinion applied DR 7-102(B)(1) (duty, on learning the client perpetrated a fraud during the representation, to seek rectification and, failing that, to act), corresponding to Model Rule 4.1, balanced against the confidentiality duty of DR 4-101, corresponding to Model Rule 1.6, with the candor concern reflected in Model Rule 3.3. The fraud here was on the court and the public funds system.
Citations and references
Rules of Professional Conduct:
- Model Rule 4.1 / DR 7-102(B)(1) (rectifying a client's fraud during the representation)
- Model Rule 1.6 / DR 4-101 (confidences and secrets)
- Model Rule 3.3 (candor toward the tribunal)
Other opinions cited:
- MBA Opinion 76-17 (reaffirmed; same conclusion under a former version of DR 7-102(B)(1))
See also
- MA Bar Ethics Op. 93-3: Trustee's lawyer and misappropriated trust funds
- MA Bar Ethics Op. 94-8: Witness recants an unfiled affidavit
Source
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