OPINION 2008-13 (SEPTEMBER 2008)

The relevant facts are as follows. The inquirer represents A, D, and C. In 2004, D was involved in a motorcycle accident. A met D in the mid-1990s, and they have been living together. A has a son, C who is a minor, from a prior marriage. Both A and C witnessed the accident involving D. Prior to the inquirer’s involvement, D’s bodily injury claim was settled. A and C have asserted claims for emotional distress. However, their claims will fail if A and D do not have a valid common law marriage. A, D, and C’s depositions have been taken, and discovery has been conducted. There has been evidence both for and contra to the common law marriage. The tort claim is pending in X County. All the parties and the witnesses to the alleged common law marriage live in Z county, and inquirer proposes to file a declaratory judgment action in Z County seeking a declaration that A and D have a valid common law marriage (and presumably that the marriage was valid in 2004 when the motorcycle accident occurred). The inquirer’s clients do not want inquirer to advise defense counsel in the tort action of any declaratory judgment action filed in Z County. The inquirer asks whether he is required to advise the Court where the tort action is pending and/or the defense counsel in the tort action about the declaratory judgment action he intends to file in Z County.

The Rules of Professional Conduct which are implicated by this inquiry are Rule 1.6, Rule 3.3, and Rule 3.4.

Rule 1.6 governs confidentiality of information. The inquirer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures necessary to carry out the representation, or as necessary to comply with duties set out in Rule 3.3. The remainder of Rule 1.6 is inapplicable to the facts as provided by the Inquirer. Therefore, unless there is a separate court rule or statute which requires or permits the inquirer to disclose the declaratory judgment action, he cannot disclose it, as his clients have not given their consent for him to do so. However, pursuant to Rule 1.0 (e), inquirer must obtain the informed consent of his clients to the proposed course of conduct, i.e. filing the declaratory judgment action in Z County and not advising the tribunal and/or defense counsel of the filing. Informed consent requires an attorney to communicate adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct. Specifically, here, inquirer must explain the potential pitfalls to his client including that any declaratory action filed may not be deemed to be binding on the parties in the tort action, the potential reaction of the tort claim judge to the filing of the declaratory judgment action specific to a filing in the tort case, and the possibility that Z County may find against the clients and that the decision would be binding, among other possible risks. Assuming the client gives informed consent despite the material risks associated with the course of conduct, inquirer is not currently required to advise the tribunal or defense counsel unless mandated to do so under Rules 3.3 or 3.4.


Rule 3.3 governs candor towards the tribunal. Pursuant to Rule 3.3, “a lawyer shall not knowingly (1) make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (2) 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 (3) offer evidence the lawyer knows to be false.” Therefore, even absent consent of the Inquirer’s clients, disclosure is required where a false statement has been made to the tribunal, or would be made to the tribunal if disclosure were not made.

Rule 3.4 relates to fairness to opposing party and counsel. Rule 3.4 (a) states that a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.

If during the course of discovery documents, witnesses, etc have been requested which support A and D’s assertion that they have a valid common law marriage, defense counsel may need to be made aware of the declaratory judgment action pending in Z county or at the least be provided with any evidence submitted in that case to the extent not already provided.

However, absent any misstatement to the court or request in discovery, inquirer is not required to advise either the court or defense counsel of the pending declaratory judgment action.

Inquirer must, however, advise the court and defense counsel in the tort action of any decision rendered in the action filed in Z County, as it is or could be controlling law in the jurisdiction. Rule 3.3 (a) (2) states that an attorney shall not knowingly fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse of the position of the client and not disclosed by opposing counsel. Rule 3.4 is also applicable and states that a lawyer shall not unlawfully obstruct another party’s access to evidence . . . or other material having potential evidentiary value. Here, any decision rendered in the declaratory judgment action has potential evidentiary value in the tort claim.

Inquirer is also advised to refer to the 23 Pa. C.S. 3306 and Pennsylvania Declaratory Judgment Act, 42 Pa C.S. 7540 as well as any other statute or rule which may apply to determine whether there is a substantive law reason to either name the defendant(s) as a party to the declaratory judgment action or advise defense counsel and/or the tribunal that a declaratory judgment action is pending which relates to a material issue in the tort action.

CAVEAT: The foregoing opinion is advisory only and is based upon the facts set forth above. The opinion is not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. It carries only such weight as an appropriate reviewing authority may choose to give it.