Whether a Lawyer is Obliged to Surrender to a Former Client Work-Product Procured Through the Former Client’s Factual Misrepresentations

A lawyer who drafted a brief and affidavit in reliance upon fraudulent factual misrepresentations made by a former client has no duty under Rule 1.16(d) to surrender these documents to the client. Rule 1.2 prevents a lawyer from assisting a client in conduct that the lawyer knows is fraudulent. Such conduct includes assisting a client in drafting or delivering documents that the lawyer knows are fraudulent. The lawyer may: (1) if practicable and effective, redact all portions of the documents containing misrepresentations and surrender to the client only the redacted documents; (2) if redaction is impractical or ineffective, refuse to produce the entire document to the client; or (3) if the client consents or Rule 1.6(d) is applicable, turn over the unredacted document(s) to the former client’s successor counsel with full disclosure as to the fraud contained in the document(s). The lawyer should also write the client demanding the immediate destruction or return of all prior drafts of documents containing the misrepresentations and directing the client not to file such documents with the court.

Applicable rules

• 1.0(f) Definition of terms
• 1.2(e) Assisting wrongful conduct by client
• 1.6(d) Confidentiality
• 1.16(d) Termination of representation
• 3.3(a) Candor to tribunal

Inquiry
After drafting a brief and affidavit which included various material factual representations asserted by the client, a lawyer discovered that those representations were false and, refusing to file such fraudulent documents with the court, the lawyer withdrew from the representation. The former client now demands that the lawyer surrender these documents, but the lawyer has reason to believe, though not actual knowledge, that the former client intends to file the brief and affidavit in going forward with the case. The client did not owe the lawyer any outstanding legal fees at the time the lawyer terminated the representation.

Discussion
Pursuant to Rule 1.16(d):

In connection with any termination of representation, a lawyer shall take timely steps to the extent reasonably practicable to protect a client's interests, such as … surrendering papers and property to which the client is entitled ….[1]

The Legal Ethics Committee has consistently determined that under the District of Columbia Rules of Professional Conduct, the entire file belongs to the client and must be surrendered to the client upon termination of the representation, unless the client has agreed otherwise or unless the lawyer is permitted by Rule 1.8(i) to retain unpaid attorney work product.[2] Here the Committee is presented, however, with the narrow question of whether a former client is entitled to a lawyer’s work product containing fraudulent misrepresentations or omissions. We conclude that he is not.

The lawyer’s duty to remove misrepresentations before surrendering the documents arises under Rule 1.2(e), which prohibits the lawyer from assisting a client “in conduct that the lawyer knows is criminal or fraudulent.” Particularly instructive is Comment [7], which provides that “the lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent.”

Additionally, Rule 3.3(a)(1) prohibits a lawyer from “knowingly mak[ing] a false statement of fact or law to a tribunal…;” Rule 3.3(a)(2) prohibits a lawyer from “knowingly …assist[ing] a client to engage in conduct that the lawyer knows is criminal or fraudulent …” (emphasis added); and Rule 3.3(a)(4) prohibits a lawyer from “offer[ing] evidence that the lawyer knows to be false.” We conclude that a lawyer who knows that the former client’s representations are false and has good reason to believe that the former client (whether through another lawyer or pro se) intends to file the brief and affidavit containing such misrepresentations would violate Rule 3.3 by surrendering such documents to the former client.[3]

Rather than decline to produce the entire document to the former client, the lawyer may, where practicable and effective, opt to redact all factual misrepresentations of which he knows-- and all legal analysis and discussion which rely upon or incorporate such misrepresentations -- and surrender only such redacted affidavit and brief. An effective redaction is where the lawyer excises sufficient material, including context where necessary, such that the client cannot simply re-insert the fraudulent facts or misrepresentations and file the brief essentially unchanged from its original fraudulent form.[4] 

Even where a lawyer acts with utmost diligence to either withhold the entire document or surrender only a carefully redacted version to the client, there nonetheless remains the potential for the former client to use the lawyer’s past services to perpetrate a fraud upon the tribunal. For this reason, the lawyer should also transmit a letter to the former client demanding that the former client immediately destroy or return all prior drafts of documents containing or making use of the misrepresentations and directing the client not to file the brief and affidavit, or an earlier draft thereof.[5] 

In the event that the former client attempts to perpetrate a fraud upon the tribunal by filing the fraudulently obtained documents or by forwarding the documents to successor counsel for use on the client’s behalf, and if substantial injury to another’s financial interests or property are reasonably certain to result from the former client’s fraud, then Rule 1.6(d) permits the original lawyer to make disclosure of the fraud to successor counsel or the tribunal, regardless of client consent. Specifically, Rule 1.6(d) provides:

When a client has used or is using a lawyer’s services to further a crime or fraud, the lawyer may reveal client confidences and secrets, to the extent reasonably necessary:

1. to prevent the client from committing the crime or fraud if it is reasonably certain to result in substantial injury to the financial interests or property of another; or
2. to prevent, mitigate, or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of the crime or fraud.

As such, disclosure is permitted, and not mandated, in those circumstances where substantial injury to a third party’s financial interests or property is reasonably certain to result from the former client’s fraud, and any disclosure under this rule must be limited to that which is reasonably necessary to prevent, mitigate, or rectify the substantial injury. Alternatively, counsel may disclose the fraud to successor counsel, without concern for 1.6(d)’s limiting factor of reasonably certain substantial injury, if counsel obtains his former client’s consent to do so.

Conclusion
Rule 1.16(d) does not require a lawyer to surrender to a former client a brief and affidavit that were fraudulently procured through the client’s factual misrepresentations. Rather, the lawyer should (1) if practicable and effective, redact the sections of the documents containing factual and legal misrepresentations and surrender only those portions of the documents not containing misrepresentations to the former client, (2) if not practicable or effective, withhold the documents in their entirety, or (3) if the client consents or Rule 1.6(d) is applicable, turn the unredacted document(s) over to the former client’s successor counsel with full disclosure of the fraud contained in the document(s).

Published: October 2009

[1] Emphasis added.

[2] See Legal Ethics Opinion 250 (Duty to Turn Over Files of Former Client to New Lawyer When Unpaid Fees are Outstanding.); Legal Ethics Opinions 286 (Former Client Files) and Legal Ethics Opinion 333 (Surrendering Entire Client File Upon Termination Of Representation). Rule 1.16(d) references Rule 1.8(i), which permits a lawyer -- in very limited circumstances -- to retain his or her work product after the termination of the representation where the client failed to pay for such work product. In this case, however, there were no outstanding legal fees owed by the client to the lawyer at the time the lawyer terminated the representation.

[3] We recognize that having “good reason to believe” a fact is different from having actual knowledge of it.  See Rule 1.0(f) (defines “knowingly” and “knows” as “actual knowledge of the fact in question,” which “may be inferred from the circumstances.”) While, in the instant case, the lawyer lacks actual knowledge that the former client intends to use the work product in question, the lawyer does have actual knowledge that the client fraudulently procured the lawyer’s work product. Under these circumstances, the lawyer’s actual knowledge of his client’s fraud, taken together with his reasonable belief that the client intends to file the documents, requires that the lawyer refuse to surrender the unredacted documents to the client.

[4] This can be facilitated, for example, by “cutting and pasting” the documents to excise the misrepresentations or by drawing lines in indelible ink through the misrepresentations. The lawyer should also indicate in the redacted document in some clear fashion that the redactions are being made to prevent fraud.  The Committee recognizes that distinguishing those portions of the document that the client may otherwise be entitled to receive from those that are predicated on information that is found to be fraudulent, may not always be easy and requires some amount of professional discretion.  Arguably, delivering remaining portions of documents that appear to be truthful, but later turn out to also contain misrepresentations may present some risk that the lawyer may be deemed liable for that information he “should have known” was false.  However, we think such a standard is too broad and does not have a basis in the language of the rules.   Whether redaction of a document is effective rests in the good faith judgment of the lawyer.  

[5] Were the lawyer to discover that the client filed an earlier draft of the fraudulent documents, the lawyer may reveal the client’s misrepresentations “to prevent the client from committing the crime or fraud if it is reasonably certain to result in substantial injury to the financial interests or property of another” or “to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of the crime or fraud.”  See Rule 1.6(d).  A lawyer’s duty to take prompt remedial measures pursuant to Rule 3.3(d) to correct a fraud perpetrated upon the tribunal does not apply here because a lawyer’s obligation to remediate ends with the lawyer’s withdrawal from representation.  See Comment [12] to Rule 3.3.