Opinion 88-39

You have asked for an opinion from the Professional Guidance Committee as to (1) whether you should continue your office's practice of terminating the representation of clients whose claims you suspect might not be legitimate and, (2) whether you should inform insurance companies who call, regarding these claims, as to your reasons for dropping the case.

With regard to the first question, the pertinent Rule of Professional Conduct is Rule 1.16, Declining or Terminating Representation, which provides, in part, as follows:

(b) ...a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if...

(l) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(2) the client has used the lawyer's services to perpetrate a crime or fraud;

(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent. (emphasis added.)

Therefore, under the Rules of Professional Conduct, the decision to terminate representation fn1 turns upon whether withdrawal can be accomplished without adversely affecting the client's interests in a material way, or if there is a reasonable belief that the claim involves fraud. Clearly, the decision to terminate your representation because of your belief that the claim is false or fraudulent is a subjective one, based upon the facts and circumstances of a particular case.

With regard to the second part of your inquiry, it is the Committee's opinion, based upon the language in Rule 1.6, regarding the confidentiality of information, that you may not reveal your reasons for terminating representation of a client, even after having dropped the case. Rule 1.6(d) specifically states that:

The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has ended.

Moreover, in this situation, where there is an absence of proof of actual fraud, the exception to confidentiality, in the case of client fraud under Rule 1.6(c)(2) fn2 does not apply.

In summary, the Committee is of the opinion that a lawyer is free to terminate representation if it will not materially adversely affect the client's case or if there is a reasonable belief that the claim is fraudulent. Secondly, the Committee believes that to inform an insurance company's agent that your suspicions regarding the falsity of a former client's claim was the reason for dropping the case would be to disclose confidential information in violation of Rule 1.6 of the Rules of Professional Conduct.

Notes

1. This opinion does not contemplate withdrawal from cases which involve court-appointed clients. See Comment to Rule 1.16.

2. Subpart (c)(2) of Rule 1.16 provides that:

A lawyer may reveal such information [relating to representation of a client] to the extent that the lawyer reasonably believes necessary:

to prevent or to 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.