Opinion rules that dismissal of an action alone is not sufficient to rectify the perjury of a client in a deposition and the lawyer must demand that the client inform the opposing party of the falsity of the deposition testimony or, if the client refuses, withdraw from the representation.
Editor's Note: See Rule 3.3(a)(4) for additional guidance.
Lawyer A represents Client H in a domestic dispute with his wife, W. Client H told Lawyer A that there was physical violence and verbal abuse in the marriage because of the actions of W and that any acts on his part were provoked. Client H wanted to move out of his house because of the abuse, and Lawyer A advised him concerning the requirements for filing a complaint for divorce from bed and board. Lawyer A recommended that a complaint alleging indignities, constructive abandonment, and cruel and unusual treatment by W should be filed shortly after separation. Lawyer A questioned Client H as to whether he had committed adultery during the marriage and advised Client H that a complaint for divorce from bed and board must contain an affirmative allegation that the actions alleged to have been perpetrated by W occurred without just cause or provocation. Client H informed Lawyer A that he had not committed adultery and that none of his acts were unprovoked.
Lawyer A filed a complaint for Client H seeking a divorce from bed and board against W based upon constructive abandonment and alleged indignities and cruel and unusual acts by W toward Client H. The complaint was verified by Client H and contained an affirmative allegation that he had been a dutiful and faithful husband.
W filed an answer denying the allegations in the complaint and seeking temporary and permanent alimony from Client H based upon allegations of physical abuse, other indignities, and failure to provide requisite support. There was no allegation in the answer that Client H had engaged in adulterous conduct.
The depositions of Client H and W were taken. At his deposition, Client H was asked whether he committed adultery during the marriage. Lawyer A objected to the question but did not instruct his client not to answer. Client answered by denying that he had committed adultery during the marriage. In conference with Lawyer A after the deposition, Client H advised Lawyer A that he had lied in his deposition and in the complaint and that he had, in fact, engaged in adultery during the marriage.
Lawyer A advised Client H that the action for divorce from bed and board must be dismissed because Client H did not have grounds for such an action. Client H consented and the action for divorce from bed and board was voluntarily dismissed without prejudice. There are no affirmative allegations currently pending seeking temporary or permanent alimony based upon the adultery of Client H. Must Lawyer A take any further action with regard to the false allegation in the verified complaint and the false testimony of Client H in his deposition?
Yes. Rule 7.2(b)(1) requires a lawyer who receives information clearly establishing that a client has perpetrated a fraud upon a person or upon a tribunal to call upon the client to rectify the fraud, and, if the client refuses or is unable to do so, the lawyer must discontinue his representation of the client in the matter. The dismissal of the divorce from bed and board action by Client H is not sufficient to rectify the fraud upon W because, in future proceedings, W and her attorney may rely upon his false testimony. Lawyer A must insist that his client rectify the fraud by allowing Lawyer A to advise W's lawyer of Client H's untruthful response in the deposition and the untruthful allegation in the verified complaint. If Client H refuses to rectify the fraud, Lawyer A must withdraw from his representation.