Opinion 2004-12

(February 2005)

 

The inquirer represents a husband in a divorce case, in which the parties were separated approximately 10 years ago.   A divorce was filed in or about 1995 and granted in 2002.   At some point, the husband (proceeding at that time pro se) and the wife, with counsel, appeared before a Master to determine property distribution.   Both parties testified and provided documentary evidence regarding marital property.   Based on that record, the Master found that the parties owned a marital residence with one encumbrance, and other assets.   The single encumbrance on the home was a loan of that the parties agreed to take out in 1996 despite the fact that they were then separated.  

 

Husband filed exceptions to these findings and hired inquirer's office sometime thereafter.   About nine months later, a trial de novo was held, in which the parties orally stipulated to certain facts at the request of wife's attorney.   Among those stipulated facts was a recitation of the above-mentioned mortgage and a statement that it was the only encumbrance on the marital residence.  The inquirer reviewed all of the available information and discussed it with his client and, accordingly, agreed to the stipulation.   That trial resulted in an Order directing the inquirer's client to make a lump sum payment to the wife.   After an apparent failure by the inquirer's client to make that payment, wife's counsel filed a petition for contempt and enforcement of the equitable distribution order. 

 

Shortly after that petition was filed, the inquirer's client filed a petition for relief under Chapter 13 of the Bankruptcy Code.   During preliminary proceedings, the inquirer was provided information that indicated another mortgage on the property.   The inquirer reviewed this with the inquirer's client and it became clear to the inquirer that this was not the mortgage that the parties had agreed to take out, but was a subsequent one dating from 1998. The inquirer states that he does not believe that the wife has knowledge of the second mortgage, despite the fact that her name has been written on a signatory line and the note was notarized.   In addition, the second mortgage was not listed in the client's verified bankruptcy schedules.  

 

The inquirer represented the husband at the initial meeting of creditors in the bankruptcy, and corrected the record when the husband answered "yes" after being asked if the schedules were true and accurate (despite the omission therein of the second mortgage).   After being corrected by the inquirer, the inquirer's client stated that the initial filings were, indeed, inaccurate and that the second mortgage existed.

 

Sometime shortly after that meeting, the inquirer pressed his client on the circumstances surrounding the second mortgage.   While the inquirer states that the client did not directly admit that the mortgage contained his wife's signature, he apparently "did not respond and simply put his head down" when the inquirer asked him directly if her signature had been forged.   After that exchange the inquirer referred the inquirer's client to a criminal defense attorney, and the inquirer believes that at the meeting between that attorney and the inquirer's client, the inquirer's client was not completely forthcoming.  

 

Based on the facts cited above the inquirer asks the Committee for guidance as to the inquirer's ethical obligations, specifically with regard to whether the inquirer may or must disclose any of this information and, if so, to whom. 

 

While this inquiry was considered by the Committee at its meeting in December 2004, the issues were evaluated under the relevant amendments to the Rules of Professional Conduct that became effective January 1, 2005.   Amended Rule 3.3(a)(3) governs this situation.  The Rule, titled "Candor Toward the Tribunal" states in part as follows: 

 

"(a)   A lawyer shall not knowingly:--    

--       

(3)   offer evidence that the lawyer knows to be false.   If a lawyer, the lawyer's client, or a witness called by the lawyer,  has offered material evidence before a tribunal--and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal--"

 

It is clear from the inquiry that, at the time the inquirer represented the client at the trial de novo, the inquirer was unaware of the existence of the second mortgage and the possible forgery issue.   Therefore, the Committee was in agreement that the inquirer did not knowingly participate in the presentation of materially false evidence.   However, if the second mortgage was in place at the time of that trial, and the inquirer's client failed to testify about it when questioned as to assets and liabilities, then it is clear that the client concealed material evidence and presented false testimony.   The inquirer's discovery of it at the subsequent bankruptcy proceeding places that information under the "after-acquired" evidence category described in Rule 3.3(a)(3).   As such, the Rule requires the inquirer to exercise the inquirer's professional judgment and take "reasonable remedial measures."

 

The Committee believes that disclosing these facts to opposing counsel in sufficient detail to allow the wife's lawyer to take whatever action is necessary to correct the record, would be the appropriate and reasonable remedial measure.   As in all such instances, the Committee advises that the inquirer consult thoroughly with the inquirer's client and strongly advise him that he should make, or authorize the inquirer to make, the recommended disclosures.   However, even if the client refuses to make the disclosure himself, or to allow the inquirer to do so, the language in Rule 3.3(a)(3) is mandatory ("the lawyer shall take--measures"), and the inquirer is, therefore, required to take those appropriate measures himself, even over the inquirer's client's objection.

It does not appear from the facts presented, that it is necessary to take the disclosure as far as any court.   The Committee believes that the provision of this information to the wife's attorney is reasonable and proportionate, and will allow that attorney to investigate whatever measures are available to correct the record and offset any harm to the wife.   This may, indeed, include disclosing the situation to an appropriate tribunal, but we believe that that decision is for the wife's attorney and need not be made by the inquirer.

 

 

 

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.