01-14: Confidentiality; Criminal Representation; Identity of Client; Perjury; Fraud; Disclosure of Fraud; Candor Toward Tribunal; Withdrawal of Representation

The inquiring attorney represented the client in criminal proceedings that were dismissed by the trial court based on a discovery violation by the prosecution. The prosecuting agency has appealed the order of dismissal. Before filing a responsive brief, the inquiring attorney learns that the client gave a false name to the trial court and, therefore, the appeal does not identify the appellee by his true name.

Is there an ethical duty to inform the appellate court of the client's true identity?

(d) 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.

(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), (c) and (d) or ER 3.3(a)(2).

(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary 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 against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) except as required by applicable law, 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.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.

The Committee addressed a related issue in Ariz. Op. 92-2. There the inquiring attorney learned that the defendant client had falsely identified himself in one of two pending criminal cases. The client wanted the lawyer to represent him in both cases, but did not want the lawyer to reveal to the different courts that the defendant had used two names and was in fact the same person. Balancing the lawyer's duty of confidentiality with the duty of candor toward the tribunal, the Committee ultimately concluded that:

[T]he inquiring lawyer should advise the client that he cannot use a false name with the court. If the client insists on using a false name, the lawyer must move to withdraw citing irreconcilable differences, but not telling the court of the client's use of a fictitious name. If the motion to withdraw is denied, then counsel must proceed but cannot rely upon or argue the client's false statement in his or her further representation of the client.

The facts of the present inquiry are somewhat different: the inquiring attorney learned while an appeal is pending that the client falsely identified himself in the trial court. Moreover, the dismissal of the charges in the trial court was unrelated to the client's true identity, and the legal issue raised by the prosecuting agency in its appeal similarly does not concern the client's identity. But these facts do not alter the lawyer's obligation to avoid assisting the client in the continuing misrepresentation of his identity to the courts.

The fraudulent nature of the client's providing a false name to the courts is best understood against the background of the pertinent rules of criminal procedure. Under those rules, the magistrate is to identify a criminal defendant's "true name" at the initial appearance and, if necessary, amend the formal charges to reflect it. Ariz. R. Crim. P. 4.2. The defendant is also generally asked to provide his full name in the release questionnaire used by magistrates to set conditions for release under A.R.S. § 13-1577(d). See Ariz. R. Crim. P. Form 4. Subsequent proceedings in the case generally will identify the defendant by the name provided to the court. A defendant's providing a false name to the court can have material consequences in both the immediate case (e.g. the person's true identity may affect release conditions or the range of possible punishment, based on the person's criminal history) and in future proceedings (e.g. whether the instant prosecution itself results in a conviction for criminal history purposes or results in the loss of civil rights).

When an appeal is taken in a criminal case, the notice of appeal identifies the "name" of the defendant, whether the appeal is taken by the defendant or the prosecutor. See Ariz. R. Crim. P. 31.2(e); Form 24(a). The appeal is docketed by the clerk of the appellate court "under the title given to the action in the trial court." Ariz. R. Crim. P. 31.7(b). In other words, the appeal as docketed generally identifies the defendant based on the name the defendant provided to the trial court. This title is then used on the face of the briefs filed by the parties in connection with the appeal. Ariz. R. Crim. P. 31.13(b).

In Ariz. Op. 92-2, the Committee assumed that a defendant's providing a false name to a court was a crime, and this Opinion makes the same assumption. Cf. A.R.S. § 13-2006 (crime of criminal impersonation). This Opinion also assumes that the inquiring attorney learned of the client's true identity through a communication that is confidential under ER 1.6.

Ethical Rule 1.6 imposes a general duty of confidentiality with regard to "information relating to representation" of the client, absent the client's consent to disclose. There are exceptions, however, to this rule of confidentiality, including ER 1.6(c), which provides that a "lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime."

Given the facts of this inquiry, ER 1.6(c) does not authorize the lawyer to reveal the client's use of a false name. This Opinion assumes that providing a false name to the trial court was a crime. Assuming also that the continued use of the false name through the appellate process is a current or continuing crime, ER 1.6(c) would not authorize disclosure because "a lawyer may not reveal a client's continuing crime if such a disclosure would also reveal a past crime by the client." Ariz. Op. 92-2 at 3.

Although ER 1.6(c) does not authorize disclosure of the client's use of the false name, the lawyer must also consider the requirements of ER 1.2(d), which provides that a lawyer shall not assist a client in conduct that the lawyer knows is criminal or fraudulent, and ER 3.3(a)(2), which prohibits a lawyer from knowingly failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting in a criminal or fraudulent act by the client. In Ariz. Op. 92-2, the Committee concluded that the true name of a client in pending litigation is a material fact for purposes of ER 3.3. Ariz. Op. 92-2 at 4. This conclusion seems applicable here, even though the inquiring attorney advises that the dismissal of the charges in the trial court was unrelated to the client's true identity. The identity of the appellee client is "material" both because it conceivably could affect the appellate court's handling of the case (e.g. whether a particular judge must recuse herself could depend on the client's true identity) and, perhaps more importantly, because it is the essence of the client's continuing fraud upon the courts.

In short, the lawyer, knowing now that the client has misrepresented his identity to the courts, cannot assist in the continuing fraudulent activity by filing a brief that itself misstates the client's true identity. Cf. Ariz. Op. 2000-02 at 10 (concluding that lawyer cannot ethically sign a plea agreement stating that he concurs in entry of a plea that he knows contains a material misrepresentation by the client). Recognizing that the lawyer has duties of confidentiality to the client, and that a criminal defendant has particular constitutional rights, including that of effective assistance of counsel, Ariz. Op. 92-2 concluded that the rules governing lawyer conduct in the face of client perjury should also apply where a lawyer learns a client has given a false name to a court. Id. at 7. The same analysis should apply here.

The inquiring attorney should advise the client that he cannot use a false name with the appellate court. Cf. Ariz. Op. 2000-02 at 7 (discussing lawyer's obligations to attempt to dissuade client from committing perjury, to explain negative ramifications of making misrepresentations to the court, and to discuss limits imposed on lawyer under the Rules of Professional Conduct). If the client insists on continuing to use a false name, the lawyer must move to withdraw citing irreconcilable differences. If the motion to withdraw is denied, then counsel must proceed but cannot rely upon or argue the client's false statement in any further representation.

[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. Ó State Bar of Arizona 2001