LEO #1687 CONFIDENCES AND SECRETS: ATTORNEY SUSPECTS THAT CLIENT
          COMMITTED FRAUD PRIOR TO HIRING ATTORNEY IN MATTER
          RELATED TO ATTORNEY'S REPRESENTATION; MUST ATTORNEY
          REVEAL HIS SUSPICION TO GOVERNMENT AGENCY INVOLVED

You have presented a hypothetical situation in which Attorney
suspects that his client committed a fraud, before he retained the
services of an attorney, to obtain a benefit from the Immigration
and Naturalization Service ("INS").  The client has not confirmed
Attorney's suspicions which, if true, would likely harm the
client's chances for a favorable resolution of a pending request
for permanent residence in the United States.  

Under the facts you have presented, you have asked the committee to
opine as to whether Attorney has an obligation to;  (1) obtain the
truth from the client; (2) reveal his suspicions to the INS; or (3)
continue the representation if Attorney reasonably believes the
client will lie to the INS in the future to conceal his or her
prior fraud.

The appropriate and controlling disciplinary rules relative to your
inquiry are DR 4-101(D)(2), DR 7-102(A)(4), DR 7-102(A)(6)&(7), and
DR 2-108.  DR 4-101(D)(2) requires an attorney to reveal
"information which clearly establishes that his client has, in the
course of the representation, perpetrated a fraud related to the
subject matter of the representation upon a tribunal.  Before
revealing such information, however, the lawyer shall request that
his client advise the tribunal of the fraud.  Information is
clearly established when the client acknowledges to the attorney
that he has perpetrated a fraud upon a tribunal."  
DR 7-102(A)(4) states that in his representation of a client, a
lawyer shall not knowingly use perjured testimony or false
evidence.  DR 7-102(A)(6)&(7) state that in his representation of
a client a lawyer shall not participate in the creation or
preservation of evidence when he knows or it is obvious that the
evidence is false nor may he counsel or assist his client in
conduct that he knows to be illegal or fraudulent.  DR 2-108
addresses the circumstances under which an attorney may withdraw
from representation of a client.

The committee has previously opined that the duty to disclose a
client's confidence or secret to prevent fraud upon a tribunal
exists only if the fraud occurred during the course of the
attorney/client relationship (See LEO's 693 and 1643).  It is not
improper for an attorney to accept at face value that the
representation of an alien client is bona fide unless the attorney
knows or, in the exercise of due diligence upon reasonable inquiry
during the attorney/client relationship, the attorney should know
of information to the contrary (See LEO 691).  

In the facts you present, the committee believes that if the
information Attorney has received does not clearly establish the
client's fraud on the tribunal, the attorney must maintain the
client's confidences and secrets unless required by court order to
reveal the information.  Since the suspicious activity which raises
the specter of fraud occurred before the attorney/client
relationship was established, and not "in the course of the
relationship" as contemplated by the rule, it is not incumbent upon
Attorney to confront the client and inquire directly about the
client's prior conduct in the current case or a substantially
related previous matter.  However, there is also nothing which
prohibits Attorney from investigating the matter further, should he
or she desire to do so.  Moreover, if Attorney never receives an
"admission" or "confession" from his client which would clearly
establish the fraud suspected, but nevertheless believes that the
fraud is obvious, Attorney should move to voluntarily withdraw from
further representation in accordance with the provisions of DR 2-
108.  A withdrawal under these circumstances must occur at a time
that does not materially prejudice the client.  The committee
declines to address whether Attorney should answer specific
questions on INS forms, since this is a question of law for a
finder of fact and beyond the purview of this committee.

[DRs 2-108, 4-101(D)(2), 7-102(A)(4), 7-102(A)(6) and (7); LEOs
691, 693, 1643]

Committee Opinion
September 23, 1996