伦理意见219
道德义务冲突
*[注:参见 意见219 受到《靠谱的滚球平台》修订的实质影响.C. 职业行为准则 that became effective on February 1, 2007]
A lawyer is not precluded from revealing a fraud committed 在代理过程中 by the client on a federal tribunal or another person if regulations of the tribunal having the force and effect of law require that the fraud be revealed and the client is first afforded a reasonable opportunity to investigate and pursue any good faith challenge to the regulations.
适用的规则
- 规则1.6(d)(2)(A)(资料保密)
- 规则3.3(d)(对法庭的坦诚)
- 规则4.1(b)(向他人陈述的真实性)
调查
美国的一项规定.S. 专利商标局，37 C.F.R. § 10.第85(b)(1)条规定:
一个从业者接收到的信息清楚地证明了这一点 . . . [a]客户有, 在代理过程中, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, 如果客户拒绝或不能这样做, the practitioner shall reveal the fraud to the affected person or tribunal.1
The present inquiry seeks guidance on how to reconcile the requirements of this regulation with the ethical obligations of members of the District of Columbia 酒吧.
讨论
对规则8的评论.5 of the 职业行为准则 now in effect refer to problems arising from conflicts between inconsistent ethical requirements of different jurisdictions, including conflicts between the rules of the 酒吧 and those of federal tribunals. 然而，如果没有真正的冲突，就不会有这样的问题. 这就是这里的情况.
规则3.《靠谱的滚球平台》第3(d)条规定:
A lawyer who receives information clearly establishing that a fraud has been perpetrated upon the tribunal shall promptly reveal the fraud to the tribunal unless compliance with this duty would require disclosure of information otherwise protected by 规则1.6, in which case the lawyer shall promptly call upon the client to rectify the fraud.2
参见规则4.1(b) (prohibiting knowing failure to disclose material facts to third persons when necessary to avoid assisting a criminal or fraudulent act by the client except when disclosure is prohibited by 规则1.6). 规则1.6, 反过来, generally requires the lawyer to maintain the confidentiality of the confidences and secrets of the lawyer's client, 哪个规则1.6(b) defines to include "information gained in the professional relationship… the disclosure of which would be embarrassing, 或者可能是有害的, 致客户端." Since this definition encompasses the existence of a fraud committed by the client during the representation, 解析:选D.C. 酒吧 normally would be precluded from disclosing such a fraud even if the client has refused to rectify it.3
然而，有一个重要的例外. 规则1.6(d)(2)(A) permits a lawyer to reveal client confidences and secrets when "required by law or court order.“委员会认为, "law" for this purpose includes federal regulations having the force and effect of law. 这是对这个术语的正常理解. 看,e.g.克莱斯勒公司. v. 布朗，441 U.S. 281, 295-96 (1979). 此外, the comments to the rules make clear that "law" within the meaning of a related provision, 规则1.6(d)(2)(B)，包括该等条例.4
相应的, we conclude that if a client refused to rectify a fraud in accordance with regulations of a federal tribunal requiring disclosure with the force and effect of law, 靠谱的滚球平台可以在不违反规则1的情况下进行披露.6或规则3.3(d)或4.1(b).
问题仍然是37°C.F.R. § 10.85(b)(1)构成这样一项规定. 虽然这是一个超出委员会职权范围的法律问题, we believe that the lawyer would be required before making any disclosure pursuant to the regulation to notify the client and provide the client a reasonable opportunity to investigate and pursue any good faith challenge to the regulation. 看到 Opinion 214 (lawyer may comply with a final judicial order enforcing an IRS summons without seeking appellate review of the order so long as the client is advised and given a reasonable opportunity to seek review independently).
调查没有. 89-3-12
1991年7月17日通过
1. 根据询盘, the Patent and Trademark Office interprets fraud for this purpose to include non-compliance with 37 C.F.R. § 1.56(a), which imposes a duty on the inventor and his or her attorney "to disclose to the Office information that they are aware of which is material to the examination of the application."
2. We assume for purposes of this opinion that the Patent and Trademark Office constitutes a "tribunal" within the meaning of this rule. 根据规则术语部分[12]段, "tribunal"指法庭, 监督管理机构, 委员会, and any other body or individual authorized by law to render decisions of a judicial or quasi-judicial nature, 根据所提供的信息, 不论诉讼程序的正式或非正式程度."
3. The lawyer would be required in that case to withdraw from the representation if the fraud is ongoing and thus otherwise would involve assistance by the lawyer. 见规则1.2(e), 1.16(a)(1), 3.3(a)(2); Opinion 153. 参见规则1.16(b)(1) and (2) regarding permissive withdrawal when the lawyer reasonably believes (but does not know) that fraud has been committed or the fraud is not ongoing, 但之前已经涉及到靠谱的滚球平台的服务.
4. 规则1.6(d)(2)(B) permits disclosure of client confidences and secrets by a government lawyer "when permitted or authorized by law.对规则1的评论[34].6 states that disclosures by government lawyers pursuant to this subparagraph "may be authorized or required by statute, 行政命令或法规, depending on the constitutional or statutory powers of the authorizing entity."
