Ohio Board Advisory Opinion Op 90-007

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 90-7
Issued April 20, 1990
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
[See, Disciplinary Counsel v. Heffernan, 58 Ohio St.3d 260 (1991); ABA, Formal Op. 93-376]
SYLLABUS: Confidential information obtained during an attorney-client relationship is
privileged and may not be disclosed by the lawyer unless permitted under DR 4-101(C). A lawyer
may not offer false evidence to any tribunal under DR 7-102 (A). A lawyer should try to convince
a client who offered fabricated evidence to reveal that fact to the affected tribunal. A lawyer's duty
of confidentiality under DR 4-101 outweighs his or her duty to rectify a fraud committed by a client
under DR 7-102 (A). If the client refuses to reveal the fraud the lawyer should withdraw from the
representation under DR 2-110.
OPINION: We have before us your request regarding a client who offered fabricated records to an
administrative agency investigating the client. The administrative agency is unaware that the
records are fabricated and the fabrication was done without your knowledge. Your specific
questions are: 1) if you agree to the representation must you reveal the fraudulent records and 2) if
you decline the representation must you reveal the fraudulent records to the administrative agency?
Disciplinary Rule 7-102 (A) (6) prohibits a lawyer from participating in the preservation of
evidence the lawyer knows is false. A lawyer who presents evidence during an adversary hearing
"in effect warrants that he or she does not know that the evidence is false." Wolfram, Modern
Legal Ethics 641 (West, 1986), citing, DR 7-102 (A) (4). Therefore, if you accept the case you
may not present the fraudulent records to the administrative agency.
A client who offers evidence the lawyer knows to be false creates a conflict between the lawyer's
duty of confidentiality and the duty of candor to the tribunal. ABA Annotated Model Rules of
Professional Conduct, 207 (1984). The lawyer must try to persuade the client not to offer the
evidence or if it has been offered, to disclose it immediately. ABA Committee on Ethics and
Professional Responsibility, Informal Op. 1470 (1981). If the client refuses to rectify the situation
the lawyer should decline the representation or withdraw from the representation. Code of
Professional Responsibility DR 2-110 (B), (C)
Withdrawn by Adv. Op. 2020-03

Op. 90-7 2
Disciplinary Rule 7-102 (B) (1) requires a lawyer to reveal to the affected person or tribunal
information clearly establishing that a client has perpetrated a fraud. A tribunal "includes all courts
and all other administrative bodies." Code of Professional Responsibility, Definitions Section 6.
The lawyer must promptly call upon the client to rectify the fraud and must reveal the fraud if the
client refuses or is unable to do so. Code of Professional Responsibility, DR 7-102 (B) (1). How is
this duty to disclose affected by the attorney-client privilege?
Ohio has not adopted the ABA's 1974 amendment to DR 7-102 (B) (1) which prohibits the
disclosure of the past fraud when the information is protected by the attorney-client privilege. "The
confidential privilege . . . must be upheld over any obligation of the lawyer to betray the client's
confidence in seeking rectification of any fraud that may have been perpetrated by his client upon a
person or tribunal." ABA Committee on Ethics and Professional Responsibility, Informal Op. 1314
(1975).
We agree. Although this state does not have the exception in DR 7-102 (B) (1), we believe that the
rule only requires disclosure of a client's past fraud when such information is not protected against
disclosure by the attorney-client privilege. Callan, Professional Responsibility and the Duty of
Confidentiality: Disclosure of Client Misconduct in an Adversary System, 29 Rutgers L. Rev. 332,
361-362 (1976).
The attorney-client privilege set forth in DR 4-101 prohibits a lawyer from revealing the
confidences or secrets of a client. A lawyer may reveal confidences or secrets if the client consents
after full disclosure or if permitted under the Disciplinary Rules. Code of Professional
Responsibility, DR 4-101 (C) (1), (2).
Critical to this request is whether an attorney-client relationship existed when the information about
the fabricated records was revealed. If the attorney-client relationship did exist, then the duty of
confidentiality supersedes the duty to disclose under DR 7-102 (B) (1). Based solely on the facts in
your letter, we believe an attorney-client relationship was established when the client disclosed the
existence of the fraudulent records. The duty of confidentiality can extend to a preliminary
consultation even if employment does not arise. ABA/BNA Lawyers' Manual on Professional
Conduct 31:101 (1989). Moreover, the duty of confidentiality continues even after the termination
of the attorney-client relationship. Code of Professional Responsibility, EC 4-6.

Op. 90-7 3
However, the protection of the privilege does not apply if the client came to you seeking aid or
assistance in committing a future crime or fraud. Callan, Professional Responsibility and the Duty
of Confidentiality: Disclosure of Client Misconduct in an Adversary System, 29 Rutgers L. Rev.
332, 342 (1976). The protection of the privilege is unavailable when the client's purpose, at the
time of the consultation, is to abuse or exploit the confidential relationship. Id.
In conclusion, it is our opinion that the information regarding the fraudulent records should be
considered privileged and may not be divulged unless permitted under DR 4-101(C). A lawyer
may not offer false evidence to any tribunal under DR 7-101(A) (4), (5), (6), (7). A lawyer must
try to convince the client to reveal the fraudulent nature of the evidence to the administrative
agency. If the client refuses, the lawyer should withdraw from the representation under DR 2-110.
This is an informal, non-binding advisory opinion based upon the facts presented and limited
to questions arising under the Code of Professional Responsibility.