Opinion 89-18
(July 1989)

You have asked the Professional Guidance Committee for an Opinion concerning the ethical propriety of your proposed letter regarding alternative sentencing for DUI offenders.

We believe that the solicitation letter outlining treatment at a medical facility at which you are Chair of the Board satisfies the Rules of Professional Conduct although we would like to point out several caveats.

We understand that you will in no way be offering legal services or representation of any kind to potential offenders. Rather, your letter is directed solely to lawyers who may recommend the sentencing. alternative you propose.

Accordingly, we construe the use of "Esq." after your name to designate yourself as possessing a law degree and not indicative of offering legal services. As such, the use of this title would not violate Rules 7.5 and 7.1 as they apply to the requirement that letterheads may not convey misleading information. Likewise, Rule 7.2, which concerns advertising of a lawyer's services, is not strictly applicable if you are not offering legal services. Further, we understand that because you are not offering legal services, there is no danger of violating the prohibition against fee-splitting with non-lawyers, as exemplified in Rules 5.4a of the Rules of Professional Conduct.

Although you are not acting as an attorney, the spirit of Rule 4.1, requiring truthfulness in statements to others, raises the concern that your letter implies that an in-patient treatment facility is a sentencing alternative recognized by the Pennsylvania Courts. That is, the letter states that habitual DUI offenders face a mandatory jail term yet sets out your facility as a viable alternative. So as to conform with Rule 4.1, the Committee would suggest that your letter to other attorneys be more explicit as to whether a judge is enabled by law to sentence a habitual DUI offender to rehabilitative treatment. If this is not possible, then your letter should confine itself to only those offenders who would be eligible for alternative sentencing.

The need to be more explicit in the information you address to other lawyers as outlined above is important insofar as you may not lead another attorney to create an unjustified expectation about the viability of a sentence alternative.

You have requested guidance from the Committee regarding your duty to disclose alleged fraud on the part of your personal injury client. Your client, a passenger in an automobile accident involved in an intersection accident with a hit and run driver, was referred to you by her brother, a former client of yours. Subsequently, your client's sister-in-law, her brother's wife, came to your office to discuss a non-related matter and informed you that the accident never took place arid that it was a fraudulent scheme thought up by her husband. You notified the client that you would no longer represent her and advised that she talk to her brother as to why. In addition you notified the doctor to whom you had referred your client for treatment and advised that you thought the claim might be fraudulent, and also forwarded the information to the attorney to whom you had referred the driver's case. Verbally, you have indicated that no insurance paperwork was filed or started, and ask about your affirmative duties to report the informant ion in question to the insurance carrier, criminal authorities and any other attorneys who may contact you regarding the claim. In addition you have asked if you acted improperly in notifying the doctor arid the attorney representing the driver of the vehicle of the potential fraud involved.

Rule of Professional Conduct 1.2d provides that:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

The comment to that rule provides in part that:

When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is not permitted to reveal the client's wrongdoing, except where permitted by Rule 1.3. However, the lawyer is required to avoid furthering the purpose for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposes is legally proper but then discovers is criminal or fraudulent. Withdrawa1 from the representation or rectification, therefore, may be required.

Rule 1.3 provides that:

A lawyer shall act with reasonable di1igence and promptness in representing a client.

Rule 1.6(a) provides that:

A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) & (c).

(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:

1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another;

(2) 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 comment to the Rule provides in part that:

A disclosure adverse to the client's interest should be no greater than the lawyer believes necessary to the purpose of prevention of harm.

A lawyer's considered decision not to make disclosures permitted by Rule 1.6(c) does not violate this Rule.

The Committee is of the opinion that the information you received, though not directly from the client, clearly is incriminating to the client and qualifies as confidential information (See Comment to Rules 1.2d and 1.6). Consequently, your duties or abilities to disclose the information are governed by Rule 1.6 and its exceptions. Prior to addressing this however, the Committee feels that your duty of diligence as outlined in Rule 1.3 requires that you confront your client directly in an attempt to ascertain the truthfulness of the sister-in-law's accusation. Should the client confess to the fraud and agree to pursue it no further, since no insurance companies were ever contacted and no monies paid, there would not appear to be any further affirmative duties of notification on your part. Clearly, Rule 1.3 would give further reason not to make any disclosures as to do so could result in criminal prosecution against your client for having filed a false police report. Although the Committee does not comment on past conduct, i.e. your having already notified the attorney to whom you referred the driver and the physician to whom you referred your client, it would appear that in general such notification by an attorney would be proper under the exception as delineated in Rule 1.6c2 provided an attorney is instrumental in making both referrals, arid is certain of the client' s fraudulent conduct.

The Committee feels, however, that should the client confess to the fraud yet indicate to you that she intends to pursue it further with another attorney, that the exception to confidentiality under Rule 1.6cl would permit you to make whatever disclosures you felt necessary in order to prevent the fraud, but caution you against disclosing too much informant ion as what you disclose should be limited to that necessary to stop the client's criminal activity. Clearly, disclosure of her admission to any attorney contacting you for the file would be permissible.

The Committee stresses that this is no affirmative ethical duty under the exceptions to Rule 1.6 for you to make such disclosures. The permissive as opposed to mandatory language of the Rule, as well as the comment, confirms this directly.

Should your client, after confrontation by you, steadfastly maintain that there was an accident and that she is not committing fraud, the Committee is of the opinion that although you may certainly withdraw from representing her if you do not feel comfortable in continuing to act on her behalf, that without any information other than the sister-in-law's assertion you should not notify third parties that she is engaging in fraudulent conduct. Whether your other information regarding the brother' s possible pattern of submitting fraudulent claims is enough confirming information to permit disclosure about the sister is a subjective decision that you must make.

 

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.