Bar Journal - September 1, 2000
ASSISTING THROUGH SILENCE: The Impact of Feld’s Case on the N.H. Rules of Professional Conduct
By: Steven Endres and Kelly Swartz
During a deposition, opposing counsel asks your client, "Did you give any money to your daughter or her company?"
The client answers, "I have no financial interest in the company." During lunch break you find out through your client that he did give his wife money, which she used to become a shareholder in the company. As you feel the room growing warmer, your mind wanders back to your Professional Responsibility class, and you ask yourself, "Am I about to get in trouble?" You vaguely remember an ABA Rule, perhaps 3.3(a)(2), that you must disclose a material fact to the tribunal when it is necessary to avoid assisting a fraudulent act by the client.1 But then you relax, as you remember that provision was not included in the New Hampshire Rules of Professional Conduct. When the Rules were adopted, the New Hampshire comments recognized the conflict between an attorney’s duty to not assist a client’s fraud and the duty to preserve client confidences.2 However, you’re still not convinced you’re in the clear, as your mind races to other rules. You remember Rule 3.4(b), which says in part, "A lawyer shall not assist a witness to testify falsely."3 You wonder if your silence might fall under the definition of "assisting." You might quickly dismiss that notion, thinking, "Without a duty to disclose, how could my silence be assistance?" So what do you do?
I. FELD’S CASE
In October 1995, Roland Roberge was asked a similar deposition question and gave a misleading answer. His attorney, Stephen Feld, like the situation posed above, found out the entire story during a lunch break.4 At that time, he counseled his client to "just continue to tell the truth." The deposition was in relation to a lawsuit filed by Emile Bussiere to secure his interest in an ensuing property dispute between the parties.5 In that case, Bussiere deposed Roland Roberge to seek his involvement in the dispute. During that deposition, Roberge gave non-responsive answers. Additionally, Bussiere also filed several interrogatories during discovery. In his answers, Roberge often responded the information sought was "outside his personal knowledge." Specifically, Roberge denied receiving a letter from Bussiere, which established his interest in the disputed property. In fact, the letter was received, and Feld saw a copy of it. However, Attorney Feld failed to correct any of the Roberge’s deposition statements and written answers. As a result, the Committee on Professional Conduct (PCC) petitioned for Feld’s disbarment in part for failing to correct the record.
II. RULES OF PROFESSIONAL CONDUCT 3.3 AND 3.4
Both the New Hampshire and the ABA Model Rule 3.4(b)-(d) provide that a lawyer shall not:
(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.6
Under 3.4, there is no explicit duty to disclose. However, in Feld’s Case, the New Hampshire Supreme Court, citing to Rule 3.4(b), stated, "Of course a Lawyer always has a duty to correct errors created by his client when the attorney learns of them."7 In its decision, the supreme court found that Feld had violated Rules of Professional Conduct, but limited sanctions to public censure.8 Assuming the court’s opinion does not incorrectly cite the rule it is applying, the court’s ruling appears to expand the scope and duties of Rule 3.4.9
Under the American Bar Association’s Model Rules of Professional Conduct, fraud in pretrial discovery, such as depositions and interrogatories, generally falls under Rule 3.3: Candor Toward the Tribunal.10 Pretrial discovery activities are governed by Rule 3.3 because they are relied upon by the court throughout the fact-finding process, potentially affecting the outcome of the dispute.11 Specifically, Rule 3.3(a)(2) 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.12
Under the ABA’s interpretation of this rule, it is mandatory for a lawyer who knows the client has committed perjury to disclose this knowledge to the tribunal if the lawyer cannot persuade the client to rectify this perjury.13 ABA Formal Opinion No. 87-353 goes on to state:
It is apparent to the Committee that as used in Rule 3.3(a)(2), the language ‘assisting a criminal or fraudulent act by the client’ is not limited to the criminal law concepts of aiding and abetting or subornation. Rather, it seems clear that this language is intended to guide the conduct of the lawyer as an officer of the court as a prophylactic measure to protect against client perjury contaminating the judicial process. Thus, when a lawyer knows the client has committed perjury, disclosure to the tribunal is necessary under Rule 3.3(a)(2) to avoid assisting the client’s criminal act.14
Therefore, under Rule 3.3(a)(2) assisting a client in a fraudulent act does not require an affirmative action on the lawyer’s part. Technically, the attorney assists a client by failing to either encourage the client to correct his fraudulent act or to disclose the act. In order to prevent this assistance the attorney must take remedial measures upon learning of the fraud.15
III. REMEDIAL MEASURES AVAILABLE
There are several possible remedial measures for an attorney to consider. First, the attorney should talk to the client and try to convince the client to correct the situation. If that doesn’t work, the attorney must use other steps. For example, withdrawal, disclosure of the proper facts to opposing counsel, disaffirming the work product, and finally, if all else fails, direct disclosure to the court.16 The ABA also states the lawyer’s duty to disclose under Rule 3.3(a)(2) "supersedes" the lawyer’s duty of confidentiality under Rule 1.6.17 Because of their potential evidentiary value, depositions and interrogatories also trigger Rule 3.3, even though they are not yet offered to a tribunal.18
When the Model Rules of Professional Conduct were adopted in New Hampshire, Rule 3.3(a)(2) and its mandatory disclosure requirement were excluded, and the permissive disclosure provision in Rule 1.6(b)(1) was expanded. Under New Hampshire’s Rule 1.6(b)(1), an attorney may disclose client confidences to prevent the client from committing a criminal act that the lawyer believes is likely to result in death, bodily harm, or substantial injury to the financial interest or property of another.19 However, these are permissible disclosures, not mandatory disclosures. In explaining the expansion, the New Hampshire Comments indicate that disclosure of client confidences is an "extreme and irrevocable act."20 The comments also explain that ABA Model Rule 3.3(a)(2) was excluded, because it interferes with the attorney’s choice to keep client communications confidential.21 Acknowledging the conflict between Rules 1.6 and 3.3, New Hampshire Comments suggest each attorney conscientiously decide which disclosures to make and when to make them.22 The comments go on to say, "Hopefully no New Hampshire lawyer will be the subject of professional censure for either disclosing or failing to disclose client confidences . . ."23 When the New Hampshire Supreme Court adopted the Rules of Professional Conduct in 1986, it chose not to adopt or approve the New Hampshire Comments to the rules.24 Therefore, the New Hampshire Comments are not law; rather merely provide guidance in understanding the committee’s actions.
This brings us back to Feld’s Case. We assume that since the New Hampshire Supreme Court could not rely on Model Rule 3.3(a)(2) because it was not adopted in New Hampshire, it relied on Rule 3.4 in the New Hampshire Rules. By citing to Rule 3.4(b) in Feld’s Case, the court essentially expanded the rule to include Rule 3.3 duties as adopted by the ABA.25 However, there are two significant differences between Rule 3.3 and Rule 3.4, as established by the ABA and adopted by New Hampshire. First, Rule 3.3 addresses candor toward the tribunal; whereas Rule 3.4 addresses fairness to the opposing party.26 Second, ABA Rule 3.3 imposes a duty to disclose, but Rule 3.4 has no such duty.27 Rule 3.4 addresses an attorney’s affirmative actions. Presumably, an attorney would immediately know when he or she is falsifying evidence or counseling or assisting a witness to testify falsely; it is therefore unlikely that an attorney would disclose the witness’s unethical behavior. However, in Feld’s Case, the supreme court applied Rule 3.4 and effectively redefined the passive action of remaining silent into the affirmative action of assisting, much like the ABA’s interpretation of "assisting" under ABA Model Rule 3.3(a)(2).28
The question remaining is whether this interpretation is applied to the concept of "assist" when it appears in other ethics rules. For example, the word "assist" appears in rules dealing with scope of representation,29 truthfulness in statements to others,30 unauthorized practice of law,31 and misconduct.32 It is unlikely that the court would apply that interpretation beyond the realm of statements before a tribunal. In the other scenarios involving assisting, New Hampshire Rule 1.6 protection of confidences trumps,33 because unlike a situation before the tribunal, the fraudulent act is less likely to determine the outcome of the process.34
If this interpretation is correct, the decision in Feld’s Case requires attorneys to alert the opposing party of any false or misleading information provided by their clients during discovery. Apparently, later disclosure and clarifications made at trial are not sufficient.35 The corrective action must occur when the attorney learns of the false or misleading statements.
Now put yourself back the deposition scenario posed above. Under the New Hampshire Supreme Court’s interpretation of Rule 3.4(b), it seems clear that you have a duty to correct any misstatement made by your client. First, talk to the client and persuade the client to clarify an answer to the opposing counsel. If the client refuses, then your options are limited. You can attempt to withdraw or alert the opposing counsel.
1. N.H. RULES OF PROFESSIONAL CONDUCT Rule 3.3(a)(2).
2. N.H. RULES OF PROFESSIONAL CONDUCT Rule 3.3 N.H. cmt.
3. N.H. RULES OF PROFESSIONAL CONDUCT Rule 3.4(b).
4. Feld’s Case, _ N.H. _, 737 A.2d 656 (1999) (ordering public censure).
5. Brief for Respondent at 9, In the Matter of Steve E. Feld, _ N.H. _, 737 A.2d 656 (1999) (No. LD-97-009); see generally Bussiere v. Roberge, 142 N.H. 905 (1998).
6. N.H. RULES OF PROFESSIONAL CONDUCT Rule 3.4(b)-(d).
7. Feld’s Case, _ N.H. _, 737 A.2d 656.
9. Compare N.H. RULES OF PROFESSIONAL CONDUCT Rule 3.4, with N.H. RULES OF PROFESSIONAL CONDUCT 3.4 (Rule 3.3 includes a disclosure provision as to the misrepresentations while Rule 3.4 makes no mention of disclosure whatsoever).
10. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3 (1999).
11. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 376 (1993)(discussing the lawyer’s obligation where a client lies in response to discovery requests).
12. MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.3(a)(2) (1999).
13. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 353 (1987).
17. ABA Comm. on Ethics and Professional Responsibility, supra note 11.
19. Under ABA Model Rule 1.6, disclosure is only permitted in circumstances where the lawyer reasonably believes disclosure will "prevent the client from committing a criminal act" resulting in death or bodily harm or claims or defenses against a client action. The risk to another’s financial or proprietary interests is not enough to allow a breach of confidentiality. Compare MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6(b)(1)-(2) (1999), with N.H. RULES OF PROFESSIONAL CONDUCT Rule 1.6(b).
20. N.H. RULES OF PROFESSIONAL CONDUCT Rule 1.6 N.H. cmt.
21. N.H. RULES OF PROFESSIONAL CONDUCT Rule 3.3 N.H. cmt.
22. N.H. RULES OF PROFESSIONAL CONDUCT Rule 1.6 N.H. cmt. (stating disclosure is permitted in circumstances arising under Rule 3.3).
24. N.H. Supreme Court Order at 14 (January 16, 1986) (amending and adopting the Rules of Professional Conduct, but adopting neither the ABA comments nor the New Hampshire Comments).
25. See generally Feld’s Case, _ N.H. _, 737 A.2d 656.
26. Compare N.H. RULES OF PROFESSIONAL CONDUCT Rule 3.3, with N.H. RULES OF PROFESSIONAL CONDUCT Rule 3.4.
28. ABA Comm. on Ethics and Professional Responsibility, supra note 13.
29. N.H. RULES OF PROFESSIONAL CONDUCT Rule 1.2 (broad rule prohibiting an attorney from assisting a client in committing a criminal or fraudulent act).
30. N.H. RULES OF PROFESSIONAL CONDUCT Rule 4.1(b) (allowing disclosure to avoid assisting a client’s criminal or fraudulent act as long as such disclosure is not prohibited under Rule 1.6).
31. N.H. RULES OF PROFESSIONAL CONDUCT Rule 5.5(b) (lawyers shall not "assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law").
32. N.H. RULES OF PROFESSIONAL CONDUCT Rule 8.4(a) ("lawyer shall not violate or attempt to violate the Rules of Professional Conduct or knowingly assist or induce another to do so, or do so through the acts of another").
33. E.g., N.H. RULES OF PROFESSIONAL CONDUCT Rule 4.1 (specifically ordering disclosure of a client’s fraudulent act, except when prohibited under Rule 1.6).
34. ABA Comm. on Ethics and Professional Responsibility, supra note 11.
35. See Feld’s Case, _ N.H. _, 737 A.2d 656.
Steven Endres, Class of 2001,
Franklin Pierce Law Center,
Concord, New Hampshire.
Kelly Swartz, Class of 2001,
Franklin Pierce Law Center,
Concord, New Hampshire.