You advise that as a result of a referral you filed suit on behalf of A & B in connection with an automobile accident. You were told by A that he was driving B's uninsured car. Suit for A was filed for personal injuries and suit for B was instituted to recover property damage to his car. Sometime after a meeting with A to respond to interrogatories, his deposition was scheduled. Upon notice thereof to A, someone by that name called you to advise you that he knew nothing of the suit, never appeared in your office and did not authorize the suit. He did however, tell you, that B his brother, was injured in a car accident on the same day as the person whom you had met with in your office, and that his brother was the owner of the vehicle in question. In addition he indicated that B had recently suffered a head injury (not in any way related to the accident in question), and had sustained some memory loss due to that head injury.
You called B in the hospital and he informed you that he was the only person in the accident and that he had assumed A's name. You next contacted him by phone at a nursing home and asked for his explanation as to why he was using Client A's name. B responded that he had not used A's name, that he knew nothing about this claim, and denied meeting you or having knowledge of, or involvement in the pending case.
Subsequently, you attempted to identify both clients. You went to visit B at the nursing home but discovered that he was discharged. You met with A whom you can positively identify as the client who came to your office to answer interrogatories, and who informed you that B moved down south and did not leave a forwarding address.
At this last meeting with A, you thoroughly reviewed the facts of the accident as well as his answers to interrogatories. Although you have no doubt that A is the individual who was involved in the accident, you nevertheless remain concerned that A may actually be B, (presumably so that he could recover first party benefits, which would be denied to him if he was also the owner of the uninsured vehicle).
When you questioned A concerning your prior conversation wherein he denied knowledge of the accident, he informed you that he is an alcohol abuser, and that when you spoke to him he most likely was extremely intoxicated and suffering a temporary memory loss. You however have been unable to prove to yourself or found any evidence which you consider conclusive showing that A could in fact be B. You have seen B's recent medical reports which contain A's Social Security number but A denies having any identification for your review. As such you are left with suspicions as to who your clients are, but cannot with certainty state that A is B, or that any part or all of the claim is fraudulent.
You have asked this Committee for an opinion concerning the steps necessary for you to withdraw as counsel under these circumstances, as you are concerned about your ethical obligation to protect both client confidentiality and the cause of action for the parties that you represent (whoever they may be).
Client confidentiality is governed by Rule of Professional Conduct 1.6. Exceptions to that rule reads in part as follows:
(b) A lawyer shall reveal such (confidential) information if necessary to comply with the duties stated in Rule 3.3.
(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 of 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.
Rule 3.3 provides, in part, that
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.
Rule 1.16 governs withdrawal by counsel and provides in part that:
...a lawyer...shall withdraw from the representation of a client if:
(1) the representation will result in violation of the rules of professional conduct or other law.
If you believe, after considering the facts, that a rule of professional conduct or other law will be violated by your continued representation your withdrawal is mandatory under Rule 1.16(a)(1). Your attention is directed to your obligations to first seek to persuade a client that false evidence should not be offered. Furthermore, if you conclude that false statements of material fact have already been made with respect to the proper party or facts and circumstances of the claims, Rule 3.3(a)(1)&(2) read in conjunction with Rule 1.6(b) would require you to you disclose this information to the court. Please also note that Rule 1.6(c)(1)&(2) would permit you to reveal information to prevent or rectify falsities that have already taken place or are about to.
The Committee is sensitive to your predicament in that you have suspicions as to whether your clients are one in the same person. However, you have indicated that you do not know this for a fact which is where your dilemma lies. Given these circumstances, the Committee suggests that you file a motion to withdraw from your representation in both matters without specifically referencing underlying facts but offering to reveal those facts, if necessary, in camera with the court.
Finally, the Committee reminds you that this opinion addresses only your ethical obligations in this matter and not any legal obligations that you may have.