Monday, November 9, 2009

Client Fraud And Duties Of Former Lawyer

A recent opinion of the District of Columbia Bar's Legal Ethics Committee is summarized below by the Committee:

A lawyer who drafted a brief and affidavit in reliance upon fraudulent factual misrepresentations made by a former client has no duty under Rule 1.16(d) to surrender these documents to the client. Rule 1.2 prevents a lawyer from assisting a client in conduct that the lawyer knows is fraudulent. Such conduct includes assisting a client in drafting or delivering documents that the lawyer knows are fraudulent. The lawyer may: (1) if practicable and effective, redact all portions of the documents containing misrepresentations and surrender to the client only the redacted documents; (2) if redaction is impractical or ineffective, refuse to produce the entire document to the client; or (3) if the client consents or Rule 1.6(d) is applicable, turn over the unredacted document(s) to the former client’s successor counsel with full disclosure as to the fraud contained in the document(s). The lawyer should also write the client demanding the immediate destruction or return of all prior drafts of documents containing the misrepresentations and directing the client not to file such documents with the court.

(Mike Frisch)

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