If a lawyer learns that a client's court affidavit was false, what must the lawyer do, and how much of the client's confidence can the lawyer reveal?

Plain-English summary

A lawyer filed a probate petition and the client's executor's oath, certifying under the court rules (22 NYCRR Part 130) that the papers contained no material misstatements. The court issued letters testamentary. The client then revealed a prior felony conviction, which under SCPA section 707(1)(d) made the client ineligible to serve as executor. The committee addresses what the lawyer must do, treating whether the client actually committed "fraud on the court" as a legal question outside its jurisdiction.

If the lawyer concludes the client committed a fraud, DR 7-102(B)(1) requires the lawyer to call on the client to correct it, and if the client refuses, to reveal the fraud to the affected person or tribunal "except when the information is protected as a confidence or secret." The committee finds the felony conviction and any perjury qualify as "secrets" under DR 4-101(A). The future-crime exception in DR 4-101(C)(3) does not apply because this is a past, completed fraud the lawyer learned of only afterward.

The committee turns to DR 4-101(C)(5), added in 1990, which lets a lawyer reveal client confidences or secrets to the extent implicit in withdrawing a representation the lawyer made to a third person that turns out to rest on materially inaccurate information. Reading "person" to include a tribunal (consistent with N.Y. State 781), the committee concludes that because the lawyer certified the client's papers under Part 130, the lawyer is permitted, and therefore required, to withdraw that certification, which entails withdrawing the client's affidavit. Crucially, DR 4-101(C)(5) authorizes disclosure only to the extent implicit in the withdrawal: the lawyer may withdraw the certification but may not explain the reasons or reveal the underlying felony or perjury. The committee clarifies its broader language in N.Y. State 674 and 781 to mean the lawyer must reveal the fraud only to the extent DR 4-101(C) permits. After withdrawing the certification, the lawyer must consider whether continued representation would violate a Disciplinary Rule (for example, DR 7-102(A)(2)-(7)), which would make withdrawal mandatory under DR 2-110(B)(2), with court permission if required.

In practice

The opinion holds, under the former Code as it stood at the time, that a lawyer who determines a client's court affidavit is false must call on the client to correct it, and if the client refuses, must withdraw the lawyer's own certification to the court under DR 4-101(C)(5) and DR 7-102(B)(1). The committee limits the disclosure to what is implicit in that withdrawal: the underlying facts (here, the felony conviction and any perjury) remain protected as confidences or secrets and may not be revealed. It adds that the lawyer must then assess whether continued representation would violate a Disciplinary Rule, making withdrawal mandatory under DR 2-110(B)(2), subject to any required court permission.

Common questions

Q: What must a lawyer do on learning a client's court affidavit was false?

A: The committee concludes the lawyer must call on the client to correct the affidavit, and if the client refuses, must withdraw the lawyer's own certification to the court under DR 7-102(B)(1) and DR 4-101(C)(5).

Q: Can the lawyer tell the court why the certification is being withdrawn?

A: No. The committee concludes DR 4-101(C)(5) permits disclosure only to the extent implicit in withdrawing the certification; the underlying facts stay protected as confidences or secrets and may not be revealed.

Q: Does the future-crime exception let the lawyer disclose?

A: No. The committee concludes DR 4-101(C)(3) does not apply because this is a past, completed fraud the lawyer learned of only after the fact, not an intended future crime.

Q: Does the lawyer have to withdraw from the case?

A: Possibly. The committee directs the lawyer to consider whether continued representation would violate a Disciplinary Rule; if so, withdrawal is mandatory under DR 2-110(B)(2), with court permission where required.

Background and rules framework

The opinion interprets the former Code's fraud-rectification rule, DR 7-102(B)(1), and the confidentiality rule DR 4-101 with its exceptions (an analogue of ABA Model Rule 1.6), as applied to a lawyer's certification to a tribunal (the subject matter of Model Rule 3.3, candor toward the tribunal), and the withdrawal rule DR 2-110(B) (Model Rule 1.16). The duty to correct turns on the 1990 disclosure exception in DR 4-101(C)(5).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal)
• MR 1.6 (confidentiality of information)
• MR 1.16 (declining or terminating representation)
• Former Code DR 7-102(B)(1); DR 4-101(A), (C)(3), (C)(5); DR 2-110(A), (B)(2)

Statutes:

• SCPA section 707(1)(d) (felon ineligible for letters testamentary)
• 22 NYCRR Part 130 (attorney certification of papers)

Other opinions cited:

• N.Y. State 781 (2004): withdrawing a certification of a financial statement with a material omission; clarified here
• N.Y. State 674 (1995): what information is "protected" within DR 7-102(B)(1); clarified here
• N.Y. City 2002-1 and Nassau County 2003-1: past versus continuing client fraud

See also

• NY State Bar Op. 1123: False statement of net worth and remedial measures
• NY State Bar Op. 1011: Duty to remedy fraudulent visa submissions
• NY State Bar Op. 1057: Disclosing client information on a motion to withdraw

Source

• Landing page: https://nysba.org/ethics-opinion-797/