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Ohio Lawyers Can’t Rep Clients Who Won’t Correct Fraud on Agency

April 9, 2020, 7:40 PM

Ohio lawyers with prospective clients who’ve submitted “fabricated documents” to an administrative agency can’t agree to the representation unless the clients agree to correct the information, the state’s professional conduct board recently said.

And a lawyer has to tell a potential client “that he or she is prohibited from assisting the client in any illegal or fraudulent conduct and, in some circumstances, may even be required to reveal confidential information to the extent necessary to avoid assisting the client,” Ohio Supreme Court’s ethics board said in its Apr. 3 opinion.

That opinion was prompted by an Ohio lawyer with a prospective client who had provided fraudulent records to an agency before meeting with the attorney, who wanted to know under what circumstances the conduct had to be revealed, the board said.

The lawyer has to be upfront with the prospective client and explain that despite the duty of confidentiality and attorney-client privilege, the lawyer may have to spill the beans, it said.

In a footnote, the opinion said that Ohio confidentiality rules specifically require lawyers to reveal information in order to comply with the requirement of truthfulness to others, characterizing the measure as a strong fraud-prevention rule not present in the American Bar Association’s Model Rules of Professional Conduct.

Before agreeing to the representation, the lawyer has to encourage the client to correct the information and can only proceed if the client agrees.

But, if the client doesn’t do so within a “reasonable time,” the lawyer should withdraw to avoid assisting the client’s illegal act, it added. If withdrawal isn’t enough to prevent this, the lawyer has to inform the agency, the board said.

A lawyer who decides not to represent the prospective client isn’t ethically obligated to reveal anything to the agency, it noted.

And the lawyer’s duty to be truthful to others doesn’t apply to a prospective client’s “completed” act, only ongoing or future acts, the board said.

The opinion is Ohio Supreme Court Bd. of Prof’l Conduct, Op. 2020-03, 4/3/20.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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