Opinion 94-4
(April 1994)

The facts presented in your inquiry are as follows: you have been representing two persons, husband and wife, in matters concerning claims arising out of a motor vehicle accident which occurred in May, 1989. In your inquiry, you refer to these two individuals as "a client and his wife," but state that you have been "representing" both in connection with that accident. Because you use the term "client" to refer to the husband, but not the wife, we are considering the husband to be your client for purposes of this inquiry. The conclusions that follow are based on that assumption, and if that assumption is incorrect, we request that you specifically so advise us.

You advised us that, in January, 1994, you received a memorandum from your client's treating physician "Dr. X," stating that your client and his wife had borrowed money from "Dr. X." Additionally, "Dr. X's" memorandum instructs you to pay a portion of the proceeds of the litigation directly to "Dr. X", in partial satisfaction of your client's loan. The memorandum appeared to have been signed by you (purportedly indicating your assent to those instructions), but you have no recollection of signing it nor of ever seeing the memorandum before. When you contacted your client, he told you that he had signed your name to the memorandum without receiving your permission. He further told you that he is presently cooperating with the United States Attorney's Office who is investigating "Dr. X," and that this memorandum arose in that context, although your inquiry does not specify what, if any, role the memorandum plays in connection with that investigation. You asked your client to have the assigned Assistant U.S. Attorney call you to discuss the matter, and you were given a "distinct impression" that your client had told the prosecutor that the memorandum had been signed with a false signature without your permission.

Based on the above facts, you have asked the Committee for guidance on the following questions:

1. What, if anything, are you required to do in accordance with the Rules of Professional Conduct as a result of the above-described situation?

2. Does Rule 1.6(c) permit you to reveal the information you have thus far obtained in order to rectify the consequences of your client's actions? Specifically, you ask whether it is permissible for you to notify "Dr. X" and the Assistant U.S. Attorney of what you have learned?

3. You ask the Committee to review certain letters that you have prepared for distribution to your client, "Dr. X" and the Assistant U.S. Attorney, and ask whether these letters comply with the Rules of Professional Conduct, and whether the Committee recommends that you send them?

Taking the last question first, please be advised that with the exception of direct mail solicitations in attorney advertising, the Committee does not review the form and content of specific correspondence that inquirers intend to distribute, for whatever purpose. Therefore, we render no opinion as to the adequacy of those proposed letters for ethics purposes. Similarly, we make no recommendation as to whether or not those letters should be sent.

Your first and second questions can both be answered by the provisions of Rule 1.6(c)(2) of the Rules of Professional Conduct. That rule provides that an attorney may reveal to persons other than the client "such information to the extent that the lawyer reasonably believes necessary... to prevent or to rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used...." Thus, Rule 1.6(c) (2) permits you to reveal the circumstances surrounding the memorandum and the unauthorized signature if you believe that those circumstances constitute a crime or fraud, and if that belief is reasonable. The determination of whether these acts constitute a criminal or fraudulent act are questions of substantive law, upon which this Committee does not opine. However, if your research into these substantive legal questions leads you to conclude that there is a likelihood that a crime or a fraudulent act has been committed, Rule 1.6(c) permits you to make disclosures necessary to rectify the effects of that act.

The question of to whom these disclosures may permissibly be made is also answered by the terms of Rule 1.6(c). Since that rule permits such disclosures "to the extent that the lawyer reasonably believes necessary" [emphasis added], your conduct will comply with Rule 1.6(c) if you reasonably believe that "Dr. X" and the Assistant U.S. Attorney are persons to whom the disclosures must necessarily be made in order to rectify the consequences of the criminal or fraudulent act.

The Committee also recommends that you review the provisions of Rule 1.2(d), relating to rendering assistance to a client in the commission of a criminal or a fraudulent act. While it is difficult to discern this possibility from the facts you presented, the Committee believed that there was a reasonable likelihood of a problem arising in connection with the treating physician (who is likely to be a witness) expecting his loan to be paid out of the proceeds of an award or settlement. You, as the proponent of this witness, cannot engage in any examination or testimony in which the doctor disavows any personal interest in the outcome of the case. To do so would misrepresent the doctor's expectations concerning loan repayment and could be considered the subornation of perjury on your part. This would likely run afoul of the provisions of Rule 1.2(d).

We are hopeful that the foregoing guidance opinion is helpful to you in addressing the concerns raised in your inquiry.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.