LEO: County/City Attorney - Disclosure  LE Op. 1205


County/City Attorney - Disclosure - Attorney/Client Relationship -

Confidences and Secrets: Duty to Reveal a False Certification in

an Executive Meeting.


April 13, 1989


You wish to know the effect in three specific situations on city and

county attorneys of a proposed amendment to the Virginia Freedom of

Information Act which would require the presiding officer of any public

body to certify that nothing improper was discussed in any executive or

closed meeting. The response to your questions is predicated on a

subsequent change to the proposed amendment which now requires that each

member of the public body make such certification rather than only the

presiding officer.


The first fact situation you pose assumes the presiding officer (now the

members) is not an attorney, and you wish to know whether an attorney

serving as counsel to the public body, in attendance at the meeting, may

remain silent or is the attorney under an obligation to the public to

disclose when a false certification is made by the presiding

officer/members. Disciplinary Rule 4-101(C)(3) permits a lawyer to reveal

a confidence or secret of his client when the lawyer has information which

clearly establishes that his client has, in the course of the

representation, perpetrated upon a third party a fraud related to the

subject matter of the representation. Although DR:4-101(C)(3) is not

mandatory in nature, the city or county attorney's permissive revelation

of his client's fraud on its constituency should be balanced by the

heightened standard for the government lawyer's application of discretion,

in order to be fair to the city or county's residents. The Committee is of

the view that absent a statute requiring the government attorney to reveal

a false certification, a client's confidences and secrets must be

preserved unless, in the government attorney's professional judgment, a

fraud has been committed to dilute the citizenry's respect for the

workings of government. (See EC:8-5)


With regard to your second question, any member of the body will be

required by law to make a true certification to the matter. Under the Code

of Professional Responsibility, it may be violative of DR:1-102(A)(4)

for a lawyer-member to make a statement which is not truthful.


Under the third fact situation, the presiding officer (now, any member)

is an attorney who has falsely certified that nothing improper has

occurred and you wish to know whether the county attorney has an

obligation to report that a violation has occurred. In addition to the

revelation under DR:4-101(C)(3) (see discussion supra), DR:1-102

provides that a lawyer shall not engage in conduct "involving dishonesty,

fraud, deceit or misrepresentation which reflects adversely on the

lawyer's fitness to practice law." Disciplinary Rule 1-103 [ DR:1-103]

provides that a lawyer having information indicating that another lawyer

has committed a violation of the disciplinary rules that raises a

substantial question as to that lawyer's fitness to practice law in other

respects shall report such information to the appropriate professional

authority. The Committee opines that it is rebuttably presumptive that a

false certification by a presiding officer-member/attorney would reflect

adversely on that lawyer's fitness to practice law. However, if the county

attorney believes that misconduct, as defined above, has occurred and the

county attorney believes that the information clearly establishes that the

presiding officer-member/attorney has perpetrated upon a third party a

fraud related to the subject matter of the representation as provided in

DR:4-101(C)(3), then the county attorney would have an obligation to

report the violation "to the appropriate professional authority" as

provided in DR:1-103. (See also LE Op. 761 and LE Op. 833)


Your fourth inquiry requests the State Bar to "take a position on this

proposed change in the act." As an arm of the Supreme Court, the Virginia

State Bar does not take positions with respect to legislative matters;

however, the Committee would refer you to the Virginia Bar Association,

which is actively engaged in legislative matters and may provide

assistance to you.


Committee Opinion April 13, 1989