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02/03-01

Statement of Facts

A lawyer represents a client in a workers’ compensation case. The client has been receiving temporary total disability benefits under the premise that the client was unemployed. The client told the lawyer that the client was not working. The lawyer also agreed to represent the client in seeking a modification of the client’s child support obligation. In the child support action, the client filed a Financial Affidavit stating the client was unemployed. At a hearing regarding modification of the child support, the District Attorney provided the lawyer with a document showing that the client has been employed part-time during every quarter since the client was injured.

Issue and Conclusions

Is the lawyer obligated to notify the insurance carrier on the workers’ compensation claim or otherwise report the fact of the client’s employment during the time the client had received temporary total disability benefits?

1. Colorado Rule of Professional Conduct ("CRPC") 1.6 requires a lawyer to maintain client confidences unless the client intends to commit a fraud crime. When the client’s conduct with respect to fraudulently obtaining temporary total disability benefits is continuing, it involves future fraud. The Rules require the lawyer to counsel the client to correct the client’s past actions and future conduct, including the filing of the false Financial Affidavit.

2. CRPC 1.2(d) prohibits a lawyer from counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent. Under CRPC 1.6(b) a lawyer should counsel the client on the lawyer’s professional discretion to disclose the client’s intent to commit continuing fraud, regardless of whether the client corrects the client’s past fraudulent conduct. CRPC 3.3(a)(4) requires a lawyer to take reasonable remedial measures to correct material evidence offered to a tribunal, which the lawyer later learns to be false, if the client is unwilling to disclose the false character of the evidence immediately. Under CRPC 3.3(b) the duties imposed by CRPC 3.3(a) continue to the conclusion of the proceedings and apply even if compliance requires disclosures otherwise protected by CRPC 1.6.

3. If the client will not correct the false affidavit, CRPC 1.16 requires the lawyer to withdraw from representing the client and disavow the filed Financial Affidavit. (See Comment to Rule 1.16 regarding withdrawal.) In addition, as to future conduct of the client, in the lawyer’s professional discretion the lawyer may disclose information necessary to prevent future fraud.