Opinion  97-5
(June 1997)
You have asked the Committee whether you have an ethical obligation in the following circumstances:
You represent an individual who has entered into a consent decree which requires that he or she pay a fine to the Commonwealth of Pennsylvania. You also represent that individual in an unrelated personal injury claim, settlement of which is impending. Your specific question is whether you have an ethical obligation to inform the court or opposing counsel of the settlement insofar as the proceeds thereof would be an asset available to pay the fine.
As is noted in the comment to Rule 1.6, [t]he confidentiality rules applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. Thus, the fact that a settlement is impending is information which is within the protection of Rule 1.6.
Subsection (b) of Rule 1.6 prescribes the only circumstance in which a lawyer is required to subserve his client's right to confidentiality: A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.
Rule 3.3 governs a lawyer's obligations of candor toward a tribunal. Subsection (a) (2) addresses a lawyer's obligation of disclosure of factual matters in other than an ex parte proceeding:
A lawyer shall not knowingly...fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.
In the Committee's opinion, Rule 3.3(a) (2) does not mandate disclosure because the mere receipt of an asset by an individual with an extant fine does not involve fraud or criminality. There is no suggestion by you that the personal injury suit or its settlement was germane to the consent decree.
However, the Committee wishes to emphasize that this opinion is limited to the facts as presented by you. Thus, we do not address your ethical responsibilities should the circumstances arise that your client were to seek to enlist your assistance in concealing his or her interest in the settlement proceeds.