Board settles privilege v. candor debate: use of a false name is protected until the client affirmatively lies.

If an attorney is representing a criminal defendant and discovers the client is using a false name, is that knowledge protected under attorney-client privilege or does the attorney have an obligation to tell the court?

It's a protected privilege, according to the Bar Board of Governors, unless the client affirmatively asserts the false identity in court.

The board, at its May 29 meeting in Key West, rejected a proposed redrafting of Ethics Opinion 90-6 from the Board Review Committee on Professional Ethics.

That document would have required lawyers, if they had formally appeared in the case, to inform the court of the misrepresentation, even as they were attempting to withdraw from the case.

Instead, the board approved an opinion drafted by board member David Rothman. It provides that, "The lawyer may not inform the court of the false name except when the client affirmatively lies to the court concerning his or her true identity."

The split voice vote came after a vigorous debate. That this was a sensitive issue was underscored by the board getting 162 pages of background materials, including advice on whether or not to adopt the BRCPE's redrafting of EO 90-6.

Committee Chair David Prather said there was no disagreement between critics and the committee that a lawyer has a duty to decline to represent a client if the client reveals in the initial consultation that he or she is using a false name, or that the attorney must withdraw if the attorney learns of the misrepresentation after accepting the case, but before making a formal appearance.

The disagreement came, he said, in cases where the attorney learns of the false name after formally appearing and cannot persuade the client to correct the error. In those cases, the BRCPE said the attorney must both move to withdraw and inform the court of the false name. The attorney must continue the representation if ordered by the court. The opinion does not require the lawyer to provide the correct name.

Citing the attorney-client privilege, "our criminal defense bar brothers and sisters do not want to disclose under any circumstance that the client is proceeding under a false name," Prather said.

But the committee felt that violated Rule of Professional Conduct 4-3.3(a), which says a lawyer has a duty to disclose false evidence, including material facts that assist in criminal or fraudulent acts by the client.

"Of all the research of all the case law we examined, there is no authority that the...