If a former client wants back documents the lawyer believes are falsified for perjury, does the lawyer have a duty to disclose the intended perjury?

Plain-English summary

The inquiry came from a lawyer whose former client asked for the return of documents the lawyer believed the client had falsified and intended to use to commit perjury. The lawyer asked whether there was any duty to disclose the believed intended perjury.

The committee noted that RPC 1.6 provides that a lawyer "may" reveal client confidences or secrets necessary to prevent the client from committing a crime. Because the rule is permissive rather than mandatory, the committee was of the opinion that the lawyer would have no duty to disclose what the lawyer believed to be the client's intent to commit perjury.

Currency note

This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rule it discusses, RPC 1.6 (confidentiality of information), corresponds to Model Rule 1.6 and has since been amended, including changes to the crime-fraud disclosure provisions. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Does a lawyer have to report a client's intended perjury?

A: Per the opinion, no. The committee was of the opinion that, because RPC 1.6 made disclosure permissive ("may"), the lawyer had no duty to disclose the believed intent to commit perjury.

Q: What made the disclosure permissive rather than mandatory?

A: The committee read RPC 1.6 as providing that a lawyer "may" reveal confidences or secrets necessary to prevent the client from committing a crime, and treated the permissive wording as controlling.

Q: Did the question involve documents the lawyer thought were falsified?

A: Yes. The former client asked the lawyer to return documents the lawyer believed were falsified and intended for use in committing perjury; the committee addressed only whether disclosure was required.

Background and rules framework

The opinion interprets Washington RPC 1.6 (confidentiality of information), corresponding to Model Rule 1.6. The committee made the answer turn on the rule's permissive verb: RPC 1.6 says a lawyer "may" reveal confidences or secrets necessary to prevent the client from committing a crime, and because the provision is permissive and not mandatory, the lawyer has no duty to disclose the believed intended perjury.

Citations and references

Rules of Professional Conduct:

• Washington RPC 1.6 (confidentiality of information; permissive disclosure to prevent a client's crime), corresponding to Model Rule 1.6.

See also

• WSBA Ethics Op. 1149: a client's false deposition testimony, consent to disclose, or withdraw
• WSBA Ethics Op. 1123: disclosure of a client's false testimony and confidentiality
• WSBA Ethics Op. 1173: a duty to disclose negligently false interrogatory answers

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=316

Original opinion text

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

Advisory Opinion: 1236
Year Issued: 1988
RPC(s): RPC 1.6
Subject: Client secret or confidence; falsified evidence; duty to disclose intended perjury

The Committee reviewed your inquiry concerning the request by a former client that you return documents to him which you believe he has falsified and which you believe he intends to use to commit perjury. You inquire whether you have any duty to disclose what you believe to be your former client's intended perjury. The Committee noted that RPC 1.6 provides that a lawyer "may" reveal client confidences or secrets necessary to prevent the client from committing a crime. Because the rule is in the permissive rather than mandatory sense, the Committee was of the opinion that you would have no duty to disclose what you believe to be your client's intent to commit perjury.