Ethics panel considers false name opinion.
On another matter, the PEC, which met during the General Meeting in Tampa, approved a proposed advisory opinion for a lawyer whose client in a divorce action had stolen documents and electronic records from her spouse. Some of those documents might involve the spouse's attorney-client privilege.
The PEC has been working on the false identity issue for the past year, beginning with a consideration of changing the commentary to Rule 4-3.3. As part of that discussion, the committee earlier this year decided to withdraw Ethics Opinion 90-6, which dealt with the same issue. A subcommittee has been working to redraft the opinion since then.
Randolph Braccialarghe, who chaired the subcommittee that worked on the revised opinion and the rule amendments, said the panel deleted language from Rule 4-3.3 that was in the original ABA model rule on the subject, but has since been removed from the model rule. The rule deals with a lawyer's duty when he or she knows their client has presented or plans to present false information or testimony to a court.
The committee voted 20-3 to approve the changes to the rule. Those now go to the Bar Board of Governors, and if approved, to the Florida Supreme Court.
The committee had a more difficult time with the draft reconsideration of Proposed Advisory Opinion 90-6, which addresses a lawyer's duties when the client is proceeding in a criminal case under an alias. The committee decided earlier to withdraw the older opinion, finding that it failed to address Bar rules and instead relied on constitutional provisions such as right to counsel and right against self-incrimination.
The new draft provides that the lawyer must refuse to enter into representation if he or she knows the defendant is using a false name and the client refuses to disclose to the court that he or she is proceeding under a false name. If the lawyer has already entered the representation, then he or she must try to persuade the client to correct the mistake. If the client refuses, the lawyer must inform the court of the misrepresentation, although the opinion does not say the lawyer has to provide the client's correct identity.
That could create a conflict with the client requiring the lawyer to request to withdraw from the case, the opinion said; however, the lawyer must continue the representation if ordered by the court.
The opinion said that Rule 4-3.3 prohibits a lawyer from making a false statement to the court or failing to correct a false fact to the court, while Rule 4-1.2(d) prohibits an attorney from assisting a client in criminal or fraudulent conduct. Rule 4-8.4(c) prohibits a lawyer from "dishonesty, fraud, deceit, or misrepresentation."
"Based on the above rules, the committee is of the opinion that if the lawyer knows that the client is proceeding under a false identity, 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, e.g., involve a misrepresentation to the court in which the lawyer cannot participate," the proposed opinion said. "By filing under the false name or responding to the false name, the lawyer essentially represents that the client is that person."
The complete text of that opinion draft is on page 25.
Braccialarghe noted that the Florida Public Defender Association and the Florida Association of Criminal Defense Lawyers have objected to the proposed opinion.
The FACDL argued that in some cases the use of an alias might not constitute a fraud on the court, that the opinion undermines consitutional protections for the client including the attorney-client privilege, and that such an issue is better addressed by a rule amendment than an ethics opinion.
The public defenders argued that a lawyer merely staying silent about a client's identity did not qualify as an affirmative action to defraud the court, that other ethics opinions and rules require lawyers to protect client confidences, and other agencies are better equipped to establish a defendant's correct identity.
"We agree that if we learn of a client's false identity after representation has begun, we should inform the client that we cannot assist in misleading the court and attempt to persuade the client to disclose the misrepresentation," Second Circuit Public Defender Nancy Daniels said, writing for the public defenders' association. "We do not agree that if we are unsuccessful in persuading the client to disclose the proper name, we must then affirmatively disclose the client's misrepresentation to the court. The better practice would be to file a motion to withdraw from the case without disclosing the client's confidence."
She also wrote, "A client who thought he had a confidential relationship with his court-appointed attorney, and a constitutional privilege against compulsory self-incrimination, will certainly feel betrayed if the attorney discloses his confidences to his legal detriment."
Braccialarghe rejected those arguments saying they appeared to imply that lawyers did not have to disclose if they were hired after the misrepresentation because it was past conduct. But he said the rule clearly requires disclosure for conduct that was "engaged" in, which covers past conduct. He also said a lawyer remaining silent is still aiding a client's fraud on the court.
Public defenders do have a special problem in that if they withdraw, an expensive private conflict counsel may have to be appointed, Braccialarghe said, but that does not affect their ethical responsibilities.
Courts have ruled that defendants--and other parties--do not have a constitutional right to lie, that a defendant can be resentenced if he or she was originally sentenced under an alias, and that it is a material act to give the wrong name in court, he said. And beyond damage to the court system, some criminal defendants have used another person's identity, he said, and then that innocent person had to deal with the uproar of suddenly having a criminal conviction on his or her record.
Further, Braccialarghe argued, if criminal defendants can lie about their identity in a criminal case, then civil litigants can, too. Judgments might become unenforceable if the defendant proceeded under an assumed name, he said.
Committee members, though, said the opinion could provide more guidance for lawyers. One example raised was if a defendant consults with a lawyer who then hires a different lawyer. If the first lawyer learned the defendant is using a false name, does he or she have an obligation to report it to the court?
Members said constitutional issues should also be mentioned, although Bar Ethics Counsel Elizabeth Tarbert said the committee can opine only about ethical matters and must advise lawyers that they must reach their own conclusions about constitutional or legal issues.
The PEC voted to reject the proposed opinion and refer it back to Braccialarghe's subcommittee for further work. It will come back to the committee in January.
In the case of the divorce client who wrongfully obtained papers of her spouse, including some that appeared to be privileged, the committee approved Proposed Advisory Opinion 07-1.
The opinion noted that it can address only ethical matters, and not the legal duties of a lawyer who receives wrongfully obtained documents nor advise whether the client's conduct violated any laws.
After a lengthy review of the issues and opinions from Florida and other states, the opinion concluded that the lawyer must follow Rule 4-1.6 on protecting client confidences, but also Rule 4-1.2 prohibiting the attorney from assisting a client in fraudulent or criminal conduct. Rule 4-8.4 prohibits the attorney from engaging in conduct involving dishonesty or fraud or is prejudicial to the administration of justice and or doing so through the acts of another. And Rule 4-3.4(a) mandates that a lawyer cannot obstruct another party's access to evidence or destroy evidence to prevent its discovery.
The opinion advised the inquiring lawyer to discuss the situation with the client, including the ethical ramifications and the possibility the client may need to seek advice from a criminal attorney if the inquiring attorney does not practice criminal law. The client should be told the inquiring attorney may be disqualified from the case and that the client may be subject to sanction by the court.
"Finally, the inquiring attorney must inform the client that the materials cannot be retained, reviewed, or used without informing the opposing party that the inquiring attorney and client have the documents at issue ...," the opinion said. "If the client refuses to consent to disclosure, the inquiring attorney must withdraw from the representation."
By Gary Blankenship
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|Publication:||Florida Bar News|
|Date:||Oct 1, 2007|
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