You have asked the Professional Guidance Committee for an opinion as to your ethical responsibilities in the following circumstances:
You recently represented a defendant in connection with his sentencing on several drug cases. As a result of that representation, you learned that your client has been the Commonwealth's principal witness in an earlier prosecution which resulted in a conviction. Your client sought and received consideration for that testimony at his sentencing. You further learned that unbeknownst to the prosecutor and contrary to the representations made by her to the defense in connection with the earlier prosecution, your client had both prior convictions and open cases at the time of his testimony.
You have now learned that your firm represented the defendant in the earlier prosecution in which your client testified, and you are concerned about, on the one hand, your responsibility of confidentiality to your current client and, on the other hand, your responsibility of disclosure to your firm's former client.
A lawyer's duty to maintain confidentiality is governed by Rule 1.6 of the Rules of Professional Conduct. Rule 1.6 provides:
(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).
(d) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.
The duty of confidentiality is a continuing duty which extends to all information relating to the representation, regardless of its source, and disclosure to your firm's former client of the sentencing consideration received by your current client or his criminal history would violate Rule 1.6(a) unless an exception applies.
Rule 1.6(b) governing mandatory disclosure provides:
(b) A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3.
Rule 3.3 provides in part:
(a) A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;
(4) offer evidence that the lawyer know to be false. If a lawyer has offered material evidence and come to know if its falsity, the lawyer shall take reasonable remedial measures.
Since you have made no misrepresentations nor offered any false evidence to the court, clearly neither subsection (a)(1) nor subsection (a)(4) applies. Further, there is nothing in your inquiry which necessarily suggests that it was your client's fraudulent misrepresentation to the prosecutor which caused her to believe that he had no criminal history. Even making such an assumption, subsection (a)(3) does not apply because your representation of the client and, therefore, any opportunity to avoid assisting a criminal or fraudulent by the client, is concluded.
Rule 1.6(c) governing permissive disclosure provides in part:
(c) A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:
(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.
Since the situation does not present prospective threat of a criminal act, subsection (c)(1) does not authorize disclosure. Assuming that your client either misrepresented his criminal history to the prosecutor or committed perjury in his trial testimony by disclaiming a criminal history, a belief that disclosure to your firm's former client is necessary to rectify the consequences of your client's criminal or fraudulent act would not be unreasonable; however, your services were not used in connection with the client's former testimony and, as a result, subsection (c)(2) does not authorize disclosure.
Accordingly, in the absence of consent by your client, you have an obligation of confidentiality to him to which no exception applies, and any disclosure to your firm's former client would violate Rule 1.6 of the Rules of Professional Conduct.
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.