(Opinion 2001-2)
March 2001

The inquirer's law firm represented a husband and wife in wrongful death and survival actions arising out of their daughter's birth trauma. Inquirer requests guidance on the firm's duty to disclose to the tribunal that certain pleadings that were filed with the court contained false information.

Based on information provided by the client husband, counsel drafted a complaint and later a petition for approval of settlement, which specifically alleged that the husband and wife were co-administrators of their daughter's estate. The clients verified both pleadings, which were filed with the court. At the time of preparing the petition for approval of settlement, counsel noticed that there were no letters of administration in the file and requested a copy from the husband, who advised counsel that he had opened the estate, but he had subsequently moved and he was still looking for the estate papers. Counsel then filed the petition for approval with the court, the court approved the petition and the case was marked settled, discontinued and ended.

Thereafter, in the course of distributing the settlement funds, counsel withheld a portion in escrow pending the filing of the estate tax return. The husband then informed counsel that, in fact, there was no estate. An estate was subsequently opened in the appropriate Pennsylvania county and the husband and wife were appointed co-administrators.

The inquirer requests guidance from the Committee as to whether the court must be advised that the estate was not raised until after settlement. Counsel is concerned about the criminal ramifications to the clients, as they executed the verifications when, in fact, they were not co-administrators of the estate.

The relevant Rules of Professional Conduct are Rule 1.6 Confidentiality of Information and Rule 3.3 Candor Toward the Tribunal. In the circumstances as presented by the inquirer, disclosure is not required.

The general duty of confidentiality set forth in Rule 1.6(a) expressly recognizes certain exceptions. Rule 1.6(b) sets forth the circumstances when a duty of disclosure is mandatory, rather than permissive, and provides, "A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3." Rule 3.3(a)(4) provides in relevant part: "If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures."

Rule 3.3(b), however, limits the duration of this mandatory obligation: "The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6." Because the personal injury case ended before counsel learned that no estate had been opened, the Committee will not address in this opinion whether the evidence was "material" to the survival action, nor counsel's obligation to make an independent determination during litigation that the plaintiffs opened an estate. However, the Committee does note that but for the timing of the discovery by the inquirer that the estate had not been opened, disclosure to the trial court might very well have been required, and note that the entire situation could have been avoided had independent verification of the raising of the estate been done.

Since counsel did not know of the falsity of the client's information until after the proceedings concluded, there is no obligation of disclosure to the trial court.

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.