Legal Ethics Opinion No. 1361

Personal Injury Representation--Representation Within the Bounds
of the Law--Fraud: Revealing that Plaintiff Attempted to Bribe

You have advised the committee that Plaintiff initiates suit on
behalf of herself and her infant  child for injuries arising out
of an automobile accident.  The suit is filed against Defendant
A, the driver of the vehicle which struck the vehicle occupied by
Plaintiff and her child, and Defendant B, the employer
corporation of Defendant A and the owner of the vehicle operated
by Defendant A.  The suit alleges that Defendant A was
intoxicated and liable for his negligent operation of the vehicle
and that Defendant B is also liable for Defendant A's negligence
under the doctrine of respondeat superior and charges B with
negligent entrustment of the vehicle when B knew or should have
known that A would operate the vehicle while intoxicated.  

During the course of discovery, Plaintiff states Witness will
offer testimony to corroborate the allegation that Defendant A
was intoxicated as witness was a waitress at the bar where
Defendant A was drinking just prior to the time the accident
occurred.  Prior to the trial, Witness contacts Defendant A and
states that she was recently visited by Plaintiff and that
Plaintiff made overtures to Witness which could be interpreted as
an attempt to bribe Witness into testifying favorably for
Plaintiff at trial.  As a result, Defense Counsel learns of this
and issues a subpoena for Witness to appear for a deposition.  In
an interview with Defense  Counsel prior to taking the
deposition, Witness reveals the same information plus the fact
that Plaintiff affirmatively stated she was trying to bribe
Witness and that Plaintiff had requested that none of this be
mentioned to her attorney.  Several days later, Witness appears
for a deposition and reaffirms bribery allegations made by
Plaintiff under oath.

Thereafter, Defense Counsel and Plaintiff's Counsel appear before
the court and Defense Counsel advises the court of the recent
discovery against Plaintiff's alleged attempted criminal
activity.  Defense Counsel also expresses to the court his
concern as to whether he may be under any ethical duty to reveal
this information to the appropriate Commonwealth's Attorney.

You have asked the committee to consider the propriety of whether
Defense Counsel has an ethical obligation to inform the
Commonwealth's Attorney of the possible criminal activity of
Plaintiff, opposing party in a personal injury matter, based on
information gained in an interview and during a deposition of a
witness.  If Defense Counsel has an obligation to inform the
appropriate authorities, would it be improper for Defense Counsel
to continue the representation of Defendants in the personal
injury matter.  If not, he asks if he may offer the information
gained as evidence for impeachment purposes or any other purpose
for which the Court would deem admissible.

The appropriate and controlling Disciplinary Rules relative to
your inquiry are DR 7-102(A)(3) and DR 7-102(B)(1).  Disciplinary
Rule 7-102(A)(3) provides that during the course of the
representation of a client, a lawyer shall not conceal or
knowingly fail to disclose that which he is required by law to
reveal; DR 7-102(B)(1) provides that a lawyer who receives
information clearly establishing that a person other than his
client has perpetrated a fraud upon a tribunal shall promptly
reveal the fraud to the tribunal.

The committee opines that if Defense Counsel is able to ascertain
either by deposition or a responsive pleading that Plaintiff had
in fact presented a bribe to Witness, then Defense Counsel may
have a legal obligation to report the alleged bribery to the
appropriate authorities which may include the office of the
Commonwealth's Attorney.  The committee directs your attention to
Legal Ethics Opinion #1222 in which the committee opined that
pursuant to Virginia Code 18.2-461 the compounding or concealing
of offenses is a crime if the agreement to conceal the offense is
granted in exchange for pecuniary benefit or reward or an
engagement therefore.  The determination of whether an attorney
has a legal duty to reveal to law enforcement authorities or the
appropriate prosecutor information concerning a non-client's
intention to commit a crime is beyond the purview of the
committee.  The committee is unaware of any Disciplinary Rules
which address an attorney's ethical duty to reveal information
concerning the possible criminal activities of a person, other
than his client, to the Commonwealth's Attorney, unless, of
course, the activities are substantially related to a criminal
matter before the court.  See DR 7-102(A) and (B).

The committee, therefore, is of the view that, under the facts as
you have 
presented them in the inquiry, Defense Counsel fulfilled his
ethical duty by advising the tribunal of the potential fraud in
light of Plaintiff's earlier statement in her deposition that
Witness would be able to corroborate her allegations that
Defendant A was intoxicated at the time of the collision.  
Witness' testimony in contravention to Plaintiff's earlier
statement must be revealed to the court since the matter of
Defendant A's intoxication is the central issue of Plaintiff's
cause of action.  See DR 7-102(A)(3) and, in particular, DR
In addition, you are concerned that if Plaintiff's actions are
revealed to the Commonwealth's Attorney, Defense Counsel may be
in violation of DR 7-104(A) if he remains in the civil action. 
This committee has consistently opined that a violation of DR
7-104(A) would occur only if Defense Counsel presented,
participated in presenting or threatened to present to
Plaintiff's Counsel the criminal charges against Plaintiff solely
for the purpose of obtaining an advantage in a civil matter.  See
also LEO #782 and #1063.  

If an attorney had an ethical duty to reveal the criminal
activities of non-clients that are related to the subject of a
representation, the committee opines that it would not be
improper for that attorney to continue the client's
representation in a civil matter.  Even if the attorney
anticipates being called as a witness in the collateral criminal
matter filed against a non-client, the attorney may continue the
representation of his client in the civil matter.  The committee
cautions that an attorney must be mindful of his duty to guard
the confidences and secrets of his client, unless he is required
by law or court order to reveal information which could be
construed to be a confidence or secret.  See DR 4-101(A), (B) and

Finally, the question you raise as to the use of the information
for impeachment or other purposes presents a legal or evidentiary
issue, the determination of which is beyond the purview of this

Committee Opinion
June 28, 1990