If a witness tells a lawyer that an unfiled affidavit the client prepared is perjurious, what does the lawyer owe the witness, the client, and the court?
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This page answers the general question as of 1994. 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 (L) represented a plaintiff (P) opposing a summary judgment motion and planned to use an affidavit from a witness (W) that P had supplied. W then called L to say a crucial part of the affidavit, a purported conversation between P and the defendant, was false; that P had written the affidavit and intimidated him into signing it; that he feared retaliation and feared committing perjury; and that he did not want L to tell P about the call. L made no promises and ended the conversation. L asked about his duties to W, to P, to the court, and whether he had to withdraw.
On duties to W and P, the committee concluded L had to tell P about the conversation. W knew L was P's lawyer, did not ask for confidentiality until after giving the information, and could not have reasonably expected to speak confidentially with the opposing party's lawyer about acting against that party's interests. The committee also noted W had no real expectation of confidentiality because his position would surface one way or another, and that the usual problem of disclosing a client's intent to commit a crime did not arise, since L's information came from W, not from P.
On the duty to the court, the committee found DR 7-102(B)(2) (a lawyer who receives information clearly establishing that a non-client has perpetrated a fraud on a tribunal must reveal it) inapplicable, because W's affidavit was not before the court, so there was no operative fraud on the court. L could not submit the affidavit to defeat summary judgment while W claimed it was perjurious; how to handle W otherwise was a matter of litigation strategy, not ethics. As for disclosing about P, the committee advised that L did not then have evidence clearly establishing that P had committed perjury, so the question of disclosure to the court did not arise. For the same reason, none of these duties required L to withdraw.
Currency note
This opinion was issued in 1994, 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: Could the witness stop the lawyer from telling his own client about the recantation?
A: No. The committee concluded the lawyer had to tell his client. The witness knew he was speaking to the opposing party's lawyer, asked for confidentiality only after giving the information, and had no reasonable expectation of confidentiality.
Q: Could the lawyer file the affidavit to defeat summary judgment?
A: No. The committee said the lawyer could not submit the affidavit to defeat the motion while the witness was claiming it was perjurious.
Q: Did the lawyer have to report anything to the court?
A: No, not on these facts. DR 7-102(B)(2) did not apply because the affidavit was never filed, so there was no fraud on the court, and the lawyer had no evidence clearly establishing that his client committed perjury.
Q: Did the lawyer have to withdraw?
A: No. The committee concluded that because the lawyer lacked evidence clearly establishing illegal conduct by his client, none of the duties involved required withdrawal.
Background and rules framework
The opinion applied the predecessor disciplinary rule DR 7-102(B)(2) (duty to reveal a non-client's fraud on a tribunal upon information clearly establishing it), corresponding to the candor-to-the-tribunal obligations of Model Rule 3.3. It also turned on the scope of client confidentiality under DR 4-101 (Model Rule 1.6) as it applied to information received from a third party, and on the lawyer's duty to keep his client informed (Model Rule 1.4).
Citations and references
Rules of Professional Conduct:
- Model Rule 3.3 / DR 7-102(B)(2) (revealing fraud on a tribunal)
- Model Rule 1.6 / DR 4-101 (confidentiality; information from a third party)
- Model Rule 1.4 (keeping the client informed)
See also
- MA Bar Ethics Op. 99-4: A misdirected privileged letter
- MA Bar Ethics Op. 03-2: Drafting a client's prejudicial advertisement
Source
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