Opinion 97-8
(August 1997)
The inquirer represents a plaintiff in a personal injury lawsuit involving a slip and fall, which the inquirer's firm investigated by photographing the scene of the alleged fall and by requesting and receiving medical records from the physician whom the client claimed had provided the client treatment for injuries sustained in the fall. After receiving this information, the inquirer filed suit on behalf of the client in the Court of Common Pleas, Philadelphia County.
After the suit was filed, the client told the inquirer that he wished to withdraw the personal injury suit for "personal reasons." Thereafter, the client instructed the inquirer to call a criminal defense attorney for more information. The criminal defense attorney informed the inquirer that the client's slip and fall claim was "fraudulent from the inception." Also, after the filing of the personal injury suit, the client retained bankruptcy counsel and sought bankruptcy protection from his creditors.
The inquirer asks this committee for an opinion regarding his or her obligation to reveal the fraud in any Motion to Dismiss or at any hearing held on such a motion. The committee assumes that the inquirer seeks guidance on whether disclosure is mandatory. The committee will also address the question of whether disclosure, if not mandated, is permitted at the discretion of the inquirer.
As the inquirer suggests, the inquiry is governed by Rules 1.6 and 3.3 of the Pennsylvania Rules of Professional Conduct. The relevant portions of these two rules are as follows:
Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out representation, and except as stated in paragraphs (b) and (c).
(b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3. A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another;
(2) to prevent or 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.
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.