Opinion 91-39
(January 1992)

You have inquired whether there is any ethical violation by your undertaking, on a pro bono basis, to represent your client in the circumstances discussed below.

Factual Background


The facts known to the Committee are as follows: Your client (Father) provided the funds for the down payment and closing costs for the purchase of a residence. Title to the property was taken, however, in the name of his daughter (Daughter), who executed the mortgage. Both Father and Daughter shared the mortgage payments and other carrying costs for the home. When Daughter subsequently became pregnant, Father and Daughter caused title to the property to be placed in the name of Father. Although possibly a fraud on the Welfare Department, this transfer enabled Daughter to qualify for public assistance during her pregnancy. Daughter has now commenced an action in equity against Father to compel transfer of title back to her. You assume that he may have a defense on the merits.

Discussion


Under the Pennsylvania Rules of Professional Conduct, you have a duty to use legal procedure for the fullest benefit of the client's cause. Rule 3.1, Comment. Undertaking of the representation, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. Rule 1.2(b). As the Comment to Rule 1.2 observes, [l]egal representation should not be denied to people who are unable to afford legal services .... Thus, your ethical duties about which you have inquired are independent of the fact that you may have undertaken the representation on a pro bono basis.

Rule 1.2 provides guidance on the ethical issue presented. Paragraph (d) of the rule states:

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.

This paragraph applies, according to the Comment to the Rule, whether or not the defrauded party is a party to the transaction. Hence, a lawyer should not participate in a sham transaction; for example, a transaction to effectuate a criminal or fraudulent escape of tax liability. Furthermore, a lawyer is required to avoid furthering the [client's fraudulent] purpose, for example, by suggesting how it [the fraud] might be concealed. Id. Thus, so long, as a lawyer does not further a continuing fraud, the lawyer may represent the client in litigation concerning the present legal ramifications of previous conduct.

Moreover, paragraph (c) of Rule 1.2 states, A lawyer may limit the objectives of the representation if the client consents after a full disclosure of the circumstances and consultation. The Comment to this paragraph observes that, subject to the other provisions of the Rules of Professional Conduct, [s]uch limitations may exclude objectives or means that the lawyer regards as repugnant or imprudent.

Based upon your conclusion that Father may have a defense on the merits and assuming that, to that extent, representation of Father concerning past events will not assist him in committing or perpetuating a fraud, it is the Committee's opinion that undertaking representation of Father does not violate the Rules of Professional Conduct. Consistent with paragraphs (c) and (d) of Rule 1.2, however, you have a duty to consult with your client with respect to the subjects of those two provisions as well as possible ramifications of his defense in the matter. In addition, you may not continue assisting a client in conduct that [you] originally suppose is legally proper but then discover is criminal or fraudulent. Rule 1.2, Comment.

It is beyond the scope of the inquiry how you may conduct such representation once it is undertaken. Because of your concern, however, that a fraud may have been committed in the original transfer of title to Father, you should be mindful of limits imposed by other provisions of the Rules of Professional Conduct. See, e.g., Rules 3.3(a) (A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client.) and 4.1 (In the course of representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.). See also Rules 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) of the Rule.); Rule 1.6(b) (A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.); and Rule 1.6(c) (A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to prevent or to rectify the consequence 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.