LEO: Attorney/Client Confidences LE Op. 1074
Attorney/Client Confidences and Secrets.
May 20, 1988
You advise that you were retained by X to obtain a divorce from his
second marriage. The property settlement was prepared, depositions taken
and a final decree prepared. However, while at the courthouse on another
matter, you checked to see if the commissioner's report had been filed in
the case. Not having the chancery number, you looked up the number and
discovered two chancery numbers and a divorce decree that was entered for
the same individual from his first wife in April of 1986, which was one
year and four months after his second marriage took place. You informed X
of this information and X stated that he had obtained a divorce overseas,
had not received the divorce papers, and therefore had filed for a divorce
in this country to appease his second wife, who was not aware of a
previous marriage until after their marriage had taken place. You then
noticed that X stated on the second marriage license that it was his first
marriage. You advised X to obtain the divorce papers from the overseas
country as soon as possible; he never produced the papers.
You then met with the circuit court judge to whom the case was assigned
and advised the judge of the situation. He advised you to take no further
action in the matter and to notify the opposing attorney at once. You sent
the opposing attorney a letter outlining the above situation in January,
1988 and to this date have received no response.
X has now retained another attorney to obtain his second divorce. You
state that you are reluctant to sign a withdrawal of counsel order, since
you feel that the point is moot and may constitute a fraud on the court.
You wish to know whether or not you must withdraw from the case and also
what your responsibility is to the commissioner in chancery who oversaw
the depositions. You wish to know whether it is your ethical duty to
advise the commissioner of the situation since you believe he based his
report on incomplete information.
With regard to your first question, DR:2-108(A)(3) states that "except
as stated in paragraph (C), a lawyer shall withdraw from representing a
client if the lawyer is discharged by the client." The Committee believes
you should withdraw as counsel since your client has hired another
Disciplinary Rule 4-101(D)(2) [ DR:4-101] states that "a lawyer shall
reveal information which clearly establishes that his client has, in the
course of the representation, perpetrated a fraud related to the subject
matter of the representation upon a tribunal. Before revealing such
information, however, the lawyer shall request that his client advise the
tribunal of the fraud. Information is clearly established when the client
acknowledges to the attorney that he has perpetrated a fraud upon a
tribunal." As far as the second divorce is concerned, any fraud which may
have been committed by your client has not been acknowledged as such by
your client. It would therefore be improper, under DR:4-101(D)(2), for
you to advise the commissioner in chancery of this information.
The Committee therefore directs you to DR:4-101(B)(1) and (B)(2), which
states that "except as provided by DR:4-101(C) and (D), a lawyer shall
not knowingly (1) reveal a confidence or secret of his client or (2) use a
confidence or secret of his client to the disadvantage of the client."
DR:4-101(A) defines "confidence" as information protected under applicable
law and "secret" as information gained in the professional relationship
which the client has requested be held inviolate or the disclosure of
which would be embarrassing or would likely be detrimental to the client."
Ethical Consideration 4-6 provides that "the obligation by a lawyer to
preserve the confidences and secrets of his client continues after the
termination of his employment."
Based upon the above cited disciplinary rules, the Committee opines that
it would be improper for you to inform the commissioner in chancery of the
information you have learned concerning your client's first divorce.
Committee Opinion May 20, 1988