The following legal opinion was handed down Oct. 1, 1991 by The Florida Bar’s Ethics Committee. It deals with what an attorney should do if they discover a client has misrepresented himself.
A criminal defense counsel who learns that his or her client, the defendant, is proceeding under a false name may not inform the court of this fact due to the attorney-client privilege, the client’s constitutional right to effective assistance of counsel, or the client’s constitutional privilege against self-incrimination. The attorney, however, may not assist the client in perpetrating or furthering a crime or a fraud on the court.
A criminal defense attorney has inquired about an attorney’s obligation upon discovering that a client, a defendant in a pending criminal proceeding, is using an alias. The attorney asks whether this information must be revealed to the court and, if so, whether the attorney must inform the court of the client’s true identity.
The Committee is of the view that information learned by an attorney concerning the client’s past acts (e.g., giving a false name to the arresting officer) must be considered confidential under Rule 4-1.6, Rules Regulating The Florida Bar, and ordinarily may not be revealed without the client’s consent due to the attorney-client privilege, the client’s constitutional right to effective assistance of counsel, or the client’s constitutional privilege against self-incrimination.
The Committee acknowledges, however, that an attorney is ethically obligated to refrain from assisting a client in perpetrating or furthering a crime or a fraud on the court. See Rules 4-1.2(d) and 4-3.3.
An example may be instructive. A person gives a false name when arrested and thereafter is criminally charged under that name. The defendant obtains an attorney. During the course of the representation, defense counsel is advised or learns that the client was charged under a false name. What are counsel’s obligations?
First, without the client’s consent, the attorney may not reveal that the client is proceeding under the false name because, as noted above, the client’s giving of a false name is a past act. Second, the attorney must immediately advise the client that he or she cannot take part in, or permit the client to take part in, any activity that would constitute commission of a crime or a fraud on the court. The attorney must advise the client that the attorney cannot assist the client in testifying unless the client is willing to admit that the name under which the client was charged is not his or her true name. The attorney must attempt to have the client respond to any questions truthfully or by asserting an applicable privilege.
Additionally, counsel must advise the client that counsel cannot remain silent while the client makes material misrepresentations or otherwise commits a fraud on the court. See Nix v. Whiteside, 106 S.Ct. 988 (1986) (not ineffective assistance of counsel for defense attorney to threaten disclosure of client’s intention to testify falsely). If the client insists on testifying falsely, for example, the attorney must look to Rule 4-3.3 for guidance. This rule provides in pertinent part:
(a) A lawyer shall not knowingly:
(1) Make a false statement of material fact or law to a tribunal;
(2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(3) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(4) Permit any witness, including a criminal defendant, to offer testimony or other evidence that the lawyer knows to be false. A lawyer may not offer testimony which he knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures.
(b) The duties stated in paragraph (a) continue beyond the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by rule 4-1.6 [concerning attorney-client confidentiality].
(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
If the client makes a material misrepresentation in the course of the court proceeding, section (a)(4) of the rule requires that the attorney take “reasonable remedial measures” to rectify the fraud on the court. The Comment to Rule 4-3.3 discusses these remedial measures. If, for example, the client made a material misrepresentation in the court proceeding regarding his or her identity or prior criminal record, the attorney should first attempt to persuade the client to correct the misrepresentation. If the client refuses to rectify the material misrepresentation, the Comment states that the attorney “should seek to withdraw if that will remedy the situation.” In the Committee’s view, withdrawal will rarely-if ever-remedy this type of fraud-on-the-court problem. Therefore, if the client refuses to rectify the misrepresentation, the obligation to do so will fall to the attorney. In the above example, counsel would be obligated to inform the court that a misrepresentation has occurred but could not take the further step of revealing the client’s true identity.
If asked by the court about the client’s identity or prior record, in order to avoid running afoul of Rule 4-3.3 the client and defense counsel may answer truthfully (if the client, after consultation with counsel, decides that doing so is in his or her best interests) or may decline to answer on the basis of any applicable privilege. See Opinion 86-3.