Board settles privilege v. candor debate: use of a false name is protected until the client affirmatively lies.

If an attorney is representing a criminal defendant and discovers the client is using a false name, is that knowledge protected under attorney-client privilege or does the attorney have an obligation to tell the court?

It's a protected privilege, according to the Bar Board of Governors, unless the client affirmatively asserts the false identity in court.

The board, at its May 29 meeting in Key West, rejected a proposed redrafting of Ethics Opinion 90-6 from the Board Review Committee on Professional Ethics.

That document would have required lawyers, if they had formally appeared in the case, to inform the court of the misrepresentation, even as they were attempting to withdraw from the case.

Instead, the board approved an opinion drafted by board member David Rothman. It provides that, "The lawyer may not inform the court of the false name except when the client affirmatively lies to the court concerning his or her true identity."

The split voice vote came after a vigorous debate. That this was a sensitive issue was underscored by the board getting 162 pages of background materials, including advice on whether or not to adopt the BRCPE's redrafting of EO 90-6.

Committee Chair David Prather said there was no disagreement between critics and the committee that a lawyer has a duty to decline to represent a client if the client reveals in the initial consultation that he or she is using a false name, or that the attorney must withdraw if the attorney learns of the misrepresentation after accepting the case, but before making a formal appearance.

The disagreement came, he said, in cases where the attorney learns of the false name after formally appearing and cannot persuade the client to correct the error. In those cases, the BRCPE said the attorney must both move to withdraw and inform the court of the false name. The attorney must continue the representation if ordered by the court. The opinion does not require the lawyer to provide the correct name.

Citing the attorney-client privilege, "our criminal defense bar brothers and sisters do not want to disclose under any circumstance that the client is proceeding under a false name," Prather said.

But the committee felt that violated Rule of Professional Conduct 4-3.3(a), which says a lawyer has a duty to disclose false evidence, including material facts that assist in criminal or fraudulent acts by the client.

"Of all the research of all the case law we examined, there is no authority that the attorney-client relationship is paramount over candor to the tribunal," Prather said.

The most notable case is Nix v. Whiteside, 475 U.S. 157 (1986), where the U.S. Supreme Court ruled against a client who sued his lawyer for ineffective assistance of counsel because the lawyer would not allow the client to lie on the stand.

"You have no right to put perjured testimony on the stand," Prather said of the ruling, and by extension, attorneys cannot knowingly allow clients to misrepresent who they are in court.

"When you're going to trial, when you're proceeding with a case, there's no way you can stand there and not tell the court who your client is," he said, adding the opinion applies only in cases where the client is deliberately trying to mislead the court.

Rothman said he disagreed that Nix v. Whiteside applies, arguing there was no need to revise the original Ethics Opinion 90-6.

"The real difference is under the old opinion 90-6, you were prohibited from ever ratting out your client, and the new proposal is now you're required to rat out your client," he said.

He contended that setting the style of a case is a function of the court clerk and the client has no control over that, so if the client gave a false name to police or if the police made a mistake, then the wrong name would be used. Police take fingerprints to further establish the defendant's identity, he said, and it should not be the defense attorney's responsibility to do that job for the government.

Rothman also argued that the committee's proposed opinion would undermine the candor necessary between attorneys and clients. Because attorneys would have to caution potential clients if they provided a false name, the attorney would have to decline the case or be required to tell the court of the deception.

Board member Ian Comisky agreed with Rothman, adding he thinks a client's identity may be a privileged matter under Florida law.

He said the committee's proposed opinion would mean, "In a criminal case, you go in to see your client and you say, 'By the way, if you tell me any of the following things, I've got to turn you in to the court.'"

Board member Dennis Kainen said some cases, such as passport fraud, turn on the identity of the client. With the proposed opinion, he said, "The criminal defense lawyer is now going to be obligated over what is the client's true name, which, is of course, an element of the case. You have now made the government's case. It's over."

"It goes to the core belief that I have on how sacred the relationship is between a lawyer and a client and how sacred that is, whether you're a defense lawyer or you're a prosecutor ... or whether you do wills and estates or you do torts," board member Jay Cohen said. "Any chipping away of that relationship is wrong. My fear is: Where does it end, where does it stop?"

But board member Carl Schwait said Rothman's opinion chips away at another core value, the requirement of candor toward the tribunal.

"It's not about ratting out our clients; it's about identity," he contended. "It's all about identity, identity being the cornerstone of how our cases start.

"It's also about attorney-client privilege versus candor toward the court. Fraud on the court, for me, has to take priority when it comes to the issue of identity."

Board member Denise Lyn, like Schwait, a member of the BRCPE, likened the issue to an ethics inquiry she made involving a family law issue where a client in a divorce case has deliberately filed a false financial affidavit, and later admits it to his or her attorney.

"What do I do? Do I have to withdraw and say nothing, or do I have to withdraw and tell the court? The answer I got [from the Bar's Ethics Department] was that I have to tell the court after I withdraw," Lyn said. "I don't believe this scenario is any different. If that's what I have to do in the family law case . . . then this is what I have to do here."

Bar Ethics Counsel Elizabeth Tarbert confirmed: "If a false financial affidavit was filed, you have an affirmative obligation to tell the court unless the affidavit is withdrawn."

The board first by a voice vote rejected the BRCPE proposed new opinion 90-6, with several dissents. By roughly the same margin, it approved Rothman's alternative draft, which he said was supported by both the Florida Public Defender Association and the Florida Association of Criminal Defense Lawyers.

In response to a question, Tarbert said a series of events began in 2000 which led to the review of Ethics Opinion 90-6. That year, the ABA conducted one of its periodic reviews of its ethics rules and made suggested changes.

The Bar in turn had its own committee that reviewed the ABA proposals and made recommendations to the board, which included changes to Rule 4-3.3.

The revised rule made no distinction between lawyers' duties in civil or criminal cases as far as candor to the tribunal, Tarbert said, although the comment did.

The Supreme Court, in turn, rejected the proposed change to the candor rule, and asked the Bar to explain why the distinction was made in the comment. The Professional Ethics Committee worked on that matter and concluded there was no basis for such a distinction, Tarbert said. (A rule change incorporating that view is pending at the court.)

Once the PEC made that determination, it realized the original Ethics Opinion 90-6 conflicted with the proposed new rule. The panel first withdrew the old opinion and then proposed a new opinion over the objections of the criminal defense bar. The PEC adopted the new opinion, which was then appealed to the Board of Governors. Those appeals are reviewed by the BRCPE, which makes a recommendation to the full board.

In this case, the committee slightly modified the PEC's suggested opinion, and then voted 6-0 to recommend the board approve it.

The BRCPE opinion said, "[I]f the lawyer knows that the client is proceeding under a false name, the lawyer would be involved in the fraud on the court. For example, the mere act of filing pleadings under the false name used by the client or responding to the alias when called at a docket-sounding involves misrepresentation to the court in which the lawyer cannot participate. By filing under the false name or responding to the false name, the lawyer essentially represents that the client is that person."

In cases where the lawyer has appeared for the client before learning of the false name, the lawyer must attempt to convince the client to correct the error. The proposed opinion then said, "If the lawyer is unsuccessful in persuading the client, then the lawyer must move to withdraw and disclose to the court that the client is proceeding under a false name."

That draft said the lawyer did not have to disclose if the client was proceeding as a "John Doe" or "Jane Doe" in the case as it is obvious that is not the defendant's name. Also, the draft said if the court file "clearly indicates" that the defendant is known by multiple names, "then the court is on notice that the client may be proceeding under a false name and no remedial measures by the criminal defense lawyer are required."

The Rothman draft approved by the board says, "The mere act of filing pleadings under the false name used by the client or responding to the alias when called at a docket sounding does not involve misrepresentation to the court.

"However, the lawyer cannot permit the client to lie and, therefore, if asked, the client must give his or her true name or invoke a privilege in refusing to respond."

The full text of the approved new ethics opinion is on the Bar's Web site.

Gary Blankenship

Senior Editor