Legal Ethics Opinion 1490

Zealous Representation: Attorney's Disclosure of Opposing Party's
Fraud on the Court to the Detriment of His Client

You have presented a hypothetical situation in which an attorney
serves as house counsel for an insurance company.  As such, the
attorney has been designated to defend an individual client in a
personal injury cause of action wherein the plaintiff alleges
that he was permanently injured as a result of the automobile
accident.  You state that liability is rather clear in that the
accident occurred when the client, who was the operator of a
truck, apparently made a left turn in front of the plaintiff, who
was the operator of a motorcycle coming from the opposite
direction.  The plaintiff's treating physician and the physician
who examined him pursuant to an independent medical examination
[IME] have both opined that the plaintiff suffers from a
permanent partial disability as a result of the accident.

The plaintiff has identified himself as "A" in the style of the
motion for judgment.  In response to one of house counsel's
interrogatories, however, the plaintiff has identified himself as
"[A], a/k/a [B]" and indicated that his social security number
(SSN) is "X".  You state that there is absolutely no similarity
between name A and name B.  Further, you state that subpoenaed
records from one of plaintiff's prior employers indicate that the
plaintiff was known only as B and that his SSN was "Y", a number
completely different from X.

You indicate that when the attorney initially inquired of the
plaintiff, during his oral deposition, as to why he is known by
two completely dissimilar names, the plaintiff refused to answer
pursuant to his counsel's instruction.  However, pursuant to an
order of court that he answer that inquiry, the plaintiff
indicated to the attorney at a subsequent deposition that his
legal name is B and that he only assumed name A after he lost his
license to operate a motor vehicle in Virginia following several
convictions for driving under the influencdicated that, in this
way, he could continue to operate a motor vehicle.  A perusal of
the plaintiff's Virginia driver's license indicated that his name
was A and that his SSN was X.

The attorney then asked plaintiff how he had obtained a driver's
license indicating name A and incorrect SSN X.  The plaintiff
stated that subsequent to losing his driver's license, he applied
for another driver's license from the Division of Motor Vehicles
using name A, which had been the legal name of a deceased
relative, and SSN X, which had been the correct SSN of another
deceased relative.  Further complicating matters, the plaintiff
indicated that he had recently been charged with several traffic
offenses, including a DUI, while carrying the false driver's
license and that he had appeared in court to answer these charges
under assumed name A and incorrect SSN X.

Finally, you advise that, immediately following this deposition,
plaintiff's counsel approached the attorney with an offer to
settle the matter for mere nuisance value in exchange for an
agreement by the attorney not to inform the proper authorities of
the circumstances of the plaintiff's false driver's license or of
plaintiff's recent appearances in traffic court under his assumed
name A.  The attorney told plaintiff's counsel that he would
agree to do nothing at that time and the matter was continued
generally on the court's docket.

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for the attorney to advise his client
to settle for nuisance value pursuant to an agreement by the
attorney not to inform the authorities of the circumstances of
plaintiff's false identity or of plaintiff's appearances in
traffic court under that assumed name.  You also inquire whether
the attorney would violate his fiduciary duty to his client if he
does not advise his client to settle on the plaintiff's terms.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 7-102(A)(3), (7) and (8) which state all not
conceal or knowingly fail to disclose that which he is required
by law to reveal, shall not counsel or assist his client in
conduct that the lawyer knows to be illegal or fraudulent, and
shall not knowingly engage in other illegal conduct or conduct
contrary to a Disciplinary Rule; and DR 7-102(B)(1) which
mandates 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

The committee opines that since the plaintiff has admitted his
use of a false name and SSN at both a deposition and appearances
in traffic court, the attorney has received information clearly
establishing that fraud has been committed upon tribunals.  SeeLEO #1451 (depositions are included within the definition of
"tribunal").  Thus, the committee is of the opinion that it is
incumbent upon the attorney to promptly reveal the fraud to the
tribunal under the mandate of DR 7-l02(B)(l).  See also LEO #l33l
(lawyer may not, by omission or commission, permit the court to
believe his client's true identity is a false name assumed by the

Finally, the committee is of the view that the attorney does not
violate his fiduciary duty to his client by advising him not to
settle according to the plaintiff's terms.  By counseling him not
to enter into a potentially illegal agreement, the attorney acts
in a manner consistent with the best interests of the client and
with his duty to the legal system. See EC 7-16.

Committee Opinion
October 19, 1992