Opinion 99-14
(November 1999)

The inquirer represents A, who was an associate lawyer of B, the lead lawyer in a personal injury firm. B was involved in a very minor traffic accident for which he filed suit (designated as a "major jury trial") in mid-1997. A signed the Complaint; B was designated the "responsible attorney" on the case. R, representing the insured defendant, filed an answer and a court conference was scheduled, notice of which was published in the local legal newspaper. B opened all mail in the office, so if notice of the conference came by mail, presumably he would have seen it. Neither A nor B went to the conference, and the case was non prossed. The judgment of non pros was docketed on October 14, 1997. B's deposition was scheduled for October 31, and R proceeded with it, assuming that B would move to set aside the judgment. Before the deposition, on the 31st, R and A discussed the non pros judgment. B knew about the judgment before the deposition; also, he told A numerous times to file a motion to set aside the judgment. A did not do so, for reasons ranging from a lack of secretarial help to his own busy work schedule. A left B's employ on December 3, 1997. Inquirer, who is familiar with B and who has sued him for debt collection in the past, represents A in an unrelated action against B to recover wages. B filed an answer and counterclaim to that action alleging that A was guilty of malpractice in allowing the non pros and failing to notify B of the non pros. B just filed a motion to set aside the non pros judgment, supported by an affidavit that said that B did not know of the judgment in 1997. The affidavit is false in that regard. If called on to testify, A will do so truthfully.

The inquirer has several questions. First the inquirer asks if he is required to report B's conduct. The Committee is of the opinion that the inquirer has no such obligation. All of the inquirer's knowledge of the facts is second-hand. The inquirer has no direct knowledge of any wrong-doing. Although he has no reason to doubt A's credibility the alleged conduct would be established as a matter of A's word against B's, and more knowledge than that possessed by the inquirer is required to mandate informing the "appropriate professional authority," as set forth in Pennsylvania Rule of Professional Conduct 8.3(a). In addition, the information received by the inquirer from A is also protected from disclosure by attorney-client confidentiality as provided for in Rule 1.6. The exceptions to client confidentiality are contained in Rule 1.6(c) which provides:

(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; or

(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.

However, none of these exceptions apply to the information that the inquirer has about A, so disclosure would be prohibited.

The inquirer's second question is whether A is required to report B's conduct. Again, the Committee is of the opinion that there is no such obligation. The information A would report is in some measure confidential, (Rule 1.6a), which cannot be revealed without B's consent. Clearly, in the present case the request for consent would be futile. In addition, the information that is confidential does not fall within any of the exceptions contained in Rule 1.6(c). Under (c)(1), neither death, substantial bodily harm nor substantial injury to the financial interests or property of another are likely to result from B's alleged action. Whether (c)(2) is implicated is more problematic, but a literal reading of that clause would seem to exclude it from applicability because A's services are not, nor had they been used in the preparation and filing of the affidavit.

Certainly, Rule 1.6(c)(3) would allow A to direct the inquirer to set forth the facts he believes to be true in any response to the counterclaim B has filed in A's action against him. But this does not mean that A must report B's conduct to a professional authority; or the tribunal in which the allegedly false affidavit has been filed.

Third, the inquirer asks to whom B's conduct must be reported, the disciplinary board, the tribunal or both? Given the Committee's response to the inquirer's first two questions, the third question is moot.

Finally, the inquirer asks if he can do nothing but await the outcome of the motion to set aside the non pros, then use the fact (if it occurs) that the motion was granted in defense of the malpractice claim against A. The Committee believes the inquirer may await the ruling on the motion to set aside the judgment of non pros, if that is procedurally possible given the action of A versus B. If the order sets aside the judgment without ascribing reasons for the court's action there is no reason why the order, as written, cannot be pleaded in defense of the counterclaim.

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.