Opinion 91-35
(February 1992)

You have inquired whether, under the circumstances outlined in your letter to the Committee of October 29, 1991, you may institute suit against a former client to recover fees on either a contractual or quantum merit basis and, further, whether you may seek money damages from that former client on theories of fraud and misrepresentation without contravening the Rules of Professional Conduct.

The general duty of a lawyer in your situation is found in Rule 1.6(a):

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) and (c).

This duty continues even after the termination of the client-lawyer relationship. Rule 1.6(d).

There are, however, specific exceptions to Rule 1.6.(a). These are found, inter alia, at Rule 1.6(c)(1)-(3). Of these exceptions, Rule 1.6(c) (3) would appear to be the most appropriate:

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

... (3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

Although the Rule does not explicitly authorize a lawyer to sue a present or former client for fees, the operative language to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client would appear to permit such an action. In this regard, the Comment to Rule 1.6, while not having the force of law in Pennsylvania, is instructive:

A lawyer entitled to a fee is permitted by paragraph (c)(3) to prove the services rendered in an action to collect it. This aspect of the Rule expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.

It is the Committee's opinion that to the extent a lawsuit initiated by you against your former client to recover outstanding fees on either a contractual or quantum meruit basis might require you to reveal information relating to representation of that client, such disclosures, to the limited extent necessary to successfully maintain your suit, would be permitted by Rule 1.6(c)(3).

The Committee urges caution with respect to your proposal to include claims for fraud and misrepresentation in the proposed action against your former client. Your letter suggests that claims by you of this nature might prevent the former client from prevailing on what you perceive to be fraudulent claims in the pending lawsuit. Under these circumstances, either Rule 3.3, which is specifically cross-referenced by Rule 1.6(b), or Rule 1.6(c)(2) might apply.

Rule 3.3 is entitled Candor Toward The Tribunal and provides, in pertinent part:

(a) A lawyer shall not knowingly:

(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....

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

The Committee notes that you do not propose to disclose material facts to the tribunal in the context of your former client's pending case nor is your purpose, except perhaps incidentally, to avoid assisting a criminal or fraudulent act by the client.... Moreover, since you have already taken the reasonably remedial measure of withdrawing as counsel rather than prosecute your former client's questionable claims, you will not be in the position of having to offer evidence that you know to be false. We note that in this regard you have already met your obligation not to counsel a client to commit or assist a client in committing a fraud.... Comment to Rule 3.3; Rule of Professional Conduct 1.2(d).

Similarly, Rule 1.6(c)(3) does not squarely address your intent to file suit for fraud or misrepresentation. Rule 1.6(c)(2) provides:

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

(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....

Disclosures under this subsection of Rule 1.6 are discretionary. Your services are no longer being used to further the former client's putatively fraudulent behavior in giving false testimony. Moreover, you do not propose to directly intervene for the purposes of rectifying or preventing the consequences of that fraudulent behavior; rather, you merely propose to file suit under an unrelated caption and to assert therein your former client's fraudulent inducement of you to undertake his legal representation. The Committee is concerned that under these circumstances you may not be excused from complying with the confidentiality obligation imposed by Rule 1.6(a). In this regard, the Committee notes that A lawyer's considered decision not to make disclosures permitted by Rule 1.6(c) does not violate this Rule (Comment to Rule 1.6); and that upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests.... Rule 1.16(d).1

It is the Committee's feeling that the Rules of Professional Conduct do not specifically prohibit the institution of suit by you against your former client on the basis of fraud and misrepresentation, but that to the extent those claims are unnecessary to the recovery of your outstanding fees and may require you to reveal information relating to your representation of the former client in contravention of Rule 1.6(a), you must give careful consideration to the nature and extent of any such potential disclosures.

Although your Inquiry is insufficiently fact-specific for the Committee to determine the materiality or scope of your client's false testimony, the Committee believes that Rule 3.3(a)(2) may be applicable in this situation. That Rule provides:

A lawyer shall not knowingly... fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client....

Although you have already taken the remedial measure of remonstrating with your client and, thereafter, withdrawing from his representation, circumstances may compel you to go forward. The Comments to Rule 3.3 state:

If withdrawal will not remedy the situation or is impossible, the advocate should make disclosure to the Court. It is for the Court then to determine what should be done making a statement about the matter to the prior effect, ordering a mistrial or perhaps nothing.

From the parameters of your Inquiry, the Committee cannot determine whether you have an obligation to bring these matters to the attention of the Court; nevertheless, the Committee feels strongly that you should be aware that you may, in fact, be under such an obligation.

Notes

1. The Comment to Rule 1.16(d) is emphatic: Even if the lawyer has been unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client...(emphasis supplied).
   

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.