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In less than four years, the Court of Appeals handed down two full opinions addressing the responsibilities of a criminal defense attorney whose client intends to commit perjury. In People v. DePallo, 1 the Court held that it was proper for defense counsel to notify the court during a jury trial that his client had committed perjury after counsel attempted to dissuade the client from testifying. This year, in People v. Andrades, 2 the criminal defense lawyer believed that his client intended to commit perjury at a Huntley hearing, in which a judge sits as the finder of fact. After unsuccessfully attempting to dissuade the client from testifying falsely, defense counsel communicated with the judge presiding over the hearing in a manner that was “open to the inference” that the client intended to commit perjury. Andrades concluded that defense counsel proceeded properly under the circumstances, but was still “bound to honor defendant’s right to testify on his own behalf.” In carrying out this responsibility, the Court observed that defense counsel “should refrain from eliciting the testimony in traditional question-and-answer form and permit defendant to present his testimony in narrative form.” This unorthodox manner of conducting direct examination immunizes the lawyer from the charge that he participated in the fraud. 3 If defendant perjures himself in the narrative, counsel may not use the perjured testimony at any time during the proceeding. 4 In Civil Litigation Despite all of the attention it receives in the criminal arena, the criminal defense bar does not have a monopoly on the perplexing problem of client perjury. Lawyers representing clients in civil litigation also face the dilemma with some frequency. Unlike the criminal defendant, a party in civil litigation does not have a constitutional right to testify and there are fewer barriers to prevent a civil litigant from testifying and committing perjury at trial. In civil litigation, however, the lawyer and client typically make a series of representations in disclosure well before trial. If the lawyer subsequently learns that some of the disclosure responses provided during the course of the action are inaccurate, they will need to be amended. A recent inquiry posed to the New York State Bar Association’s Committee on Professional Ethics 5 helps to highlight the problem and offers some solutions. In Formal Opinion 781, a matrimonial lawyer submitted the client’s financial statement and signed the paper to certify its accuracy. This type of document is familiar to lawyers representing clients in actions involving alimony, maintenance, child support and equitable distribution, in which a party is required to file sworn statements of net worth. 6 After filing the statement with the court, the lawyer learned that it contained a material error because substantial client assets were omitted. How should this lawyer proceed, and others faced with a similar dilemma in the course of civil litigation, proceed? The Crossroads We are at the crossroads of attorney ethics and civil procedure once again, with several provisions from different sets of laws outlining the lawyer’s duties. Disciplinary Rules (DR) 7-102(B)(1) of the New York Lawyer’s Code of Professional Responsibility requires the lawyer to promptly request that the client correct the omission. If the client refuses to correct the financial statement, the lawyer “shall reveal the fraud to the affected person or tribunal,” except when it would require the lawyer to reveal a “confidence” or “secret.” 7 The exception here virtually swallows the rule because almost all information gained in the attorney-client relationship concerning the client is protected as a secret, regardless of its source or the fact that others share the knowledge. 8 If, for example, the client confessed to the material omission, refused to correct it, and confidentially sought the lawyer’s legal advice in connection with the misrepresentation, the lawyer cannot report the fraud. Assuming that this conversation is the only source of the lawyer’s knowledge regarding the fraud, reporting it to the court or an adverse party would require the lawyer to reveal both confidences or secrets in contravention of DR 7-102(B)(1). Moreover, simply calling one’s own client to the stand and conducting the narrative testimony recommended in DePallo and Andrades will not solve the problem concerning the fraudulent financial statement. To make matters even more difficult, the lawyer may be personally subject to sanctions for allowing the misrepresentation to linger. Part 130 of the Rules of the Chief Administrator requires that “[e]very pleading, written motion, and other paper, served on another party or filed or submitted to the court shall be signed by an attorney.” 9 In signing a litigation paper, the attorney certifies to the accuracy of its contents. 10 An attorney does not warrant the truth of every fact asserted in every paper served on behalf of the client in litigation. Rather, the signature certifies that “to the best of that person’s knowledge, information and belief, formed after an inquiry reasonable under the circumstances,” the contentions in the paper are not “frivolous.” 11 The paper is “frivolous” if it “asserts material factual statements that are false.” 12 Furthermore, an additional factor courts must consider in determining whether actions taken in disclosure are frivolous includes “whether or not the conduct was continued when its lack of . . . factual basis was apparent, or was brought to the attention of counsel or the party.” 13 If the conduct is deemed frivolous, costs and/or sanctions can be imposed upon a party or attorney responsible for it. 14 The amount of sanctions awarded cannot exceed $10,000 “for any single occurrence of frivolous conduct,” but there is no cap on an award for costs. 15 Viewing the facts presented in NYSBA Opinion 781 in light of Part 130′s standards for frivolous conduct, a strong argument can be made that the lawyer is subject to sanction. Even if she conducted a reasonable inquiry prior to certifying the financial statement, its lack of factual basis has since been brought to her attention. Frivolous Representations In sum, the representations in the financial statement are now frivolous. If she does not amend or withdraw her certification, she is allowing the frivolous conduct to continue with her apparent blessing. The potential victim in this scenario, the adverse party acting in reliance on the false financial statement, could be significantly damaged as a result of the omission. The extent of any damage caused by the misrepresentation will be a factor for the court to consider in determining the amount of costs or sanctions to be awarded. 16 Civil Practice Law and Rules (CPLR) 3101(h), requiring the supplementation of prior responses to disclosure requests, will also mandate that action be taken in these circumstances. CPLR 3101(h) directs a party to amend or supplement a response previously provided in disclosure if that party obtains information that it was incorrect or incomplete when made. If the party refuses to supplement an incomplete or incorrect disclosure, the lawyer’s prior certification can no longer withstand scrutiny under either Part 130 or CPLR 3101(h). 17 A motion for withdrawal would likely be required if the client refuses to correct the material omission because various provisions in DR 7-102(A) prohibit the lawyer from continuing the representation with the false financial statement still on record. 18 This does not resolve the lawyer’s dilemma. Even if the court grants the lawyer’s motion for withdrawal, the lawyer’s certification of the financial statement lingers, exposing the lawyer to sanctions in the future. A Rock and a Hard Place The lawyer appears to be stuck between a rock and a hard place. DR 7-102(B)(1) prohibits the lawyer from revealing the fraud, while Part 130 lies in wait, baring its formidable teeth. If the recalcitrant client refuses to correct the misrepresentation, the lawyer should have some recourse to avoid sanctions and to prevent harm to her reputation and license. Salvation in these circumstances lies in a relatively obscure exception to the lawyer’s duty of confidentiality, DR 4-101(C)(5). This exception does not allow the lawyer to expressly inform the court or an adversary that the client’s financial statement contains a material omission. Rather, it permits the lawyer to withdraw a previously rendered opinion or representation being relied upon by a third person if the lawyer has discovered that it “was based on materially inaccurate information or is being used to further a crime or fraud.” 19 As noted above in the discussion of Part 130, the lawyer’s certification of the financial statement, or any paper in litigation, constitutes the lawyer’s representation that the contents of the document are accurate. It is reasonable to believe that any adverse party in the litigation is continuing to rely on it. The withdrawal of a certified litigation paper, such as a financial statement, should be accomplished in a very short letter to the court and all parties who have been served with the paper. Although the lawyer’s act of withdrawing the financial statement in this fashion may telegraph to all parties and the court that the client provided false or inaccurate information in the first instance, DR 4-101(C)(5) permits this form of implied revelation. In Formal Opinion 781, the committee said that “permissive disclosure under DR 4-101(C)(5) mandates disclosure under DR 7-102(B)(1).” The language in DR 4-101(C) does not appear to support this conclusion. It merely provides that the lawyer “may” reveal confidences and secrets in certain enumerated circumstances. This distinction will be irrelevant to most lawyers stuck in this predicament, who will simply desire some authority to withdraw a document that they have certified, regardless of whether the authority is permissive or mandatory. Although DR 4-101(C)(5) does not compel the lawyer to withdraw the financial statement after learning of the material omission, Part 130 and CPLR 3101(h) strongly encourage the lawyer to do so. Patrick M. Connors is an associate professor of law at Albany Law School, where he teaches New York Practice. He is the author of the McKinney’s Practice Commentaries for CPLR Article 31, Disclosure. Thomas F. Gleason is a member of Gleason, Dunn, Walsh & O’Shea, in Albany and an adjunct professor at Albany Law School. Endnotes: 1. 96 NY2d 437 (2001). 2. 4 NY3d 355 (2005). 3. DR 7-102(A)(6). 4. DR 7-102(A)(4). 5. NYSBA Comm. on Prof’l Ethics, Formal Op. 781 (Dec. 8, 2004). 6. See 22 NYCRR §202.16(b). 7. DR 7-102(B)(1); see DR 4-101(A) (defining confidence and secret). 8. EC 4-4; see Connors, Practice Commentaries to DR 4-101(A), McKinney’s Consolidated Laws of New York, Judiciary Law, Volume 29. 9. 22 NYCRR §130-1.1-a(a). 10. 22 NYCRR §130-1.1-a(b). 11. Id. 12. 22 NYCRR §130-1.1(c)(3). 13. 22 NYCRR §130-1.1(c). 14. 22 NYCRR §130-1.1(a). 15. 22 NYCRR §130-1.2. 16. 22 NYCRR §130-1.1(a). 17. See Connors, Practice Commentaries to CPLR 3101, 3101:49, McKinney’s Consolidated Laws of New York. Volume 7B. 18. See DR 2-110(B)(2) (requiring lawyer to make a motion for withdrawal if continued employment will result in violation of disciplinary rule). 19. See Connors, Practice Commentaries to DR 4-101(C)(5), McKinney’s Consolidated Laws of New York, Judiciary Law, Volume 29.

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