Ethics Opinon 1983-3

I
QUESTION PRESENTED

Does Attorney A, who represents Doctor A in a malpractice action, have a duty to disclose altered evidence to other counsel under the following circumstances:

Doctor A performed an operation on a patient who later died. After the operation, Doctor A discovered, copied, and provided Attorney A with nursing notes which showed the incorrect administration of medication ordered by Doctor B after the operation. This error by Doctor B could have caused the patient's demise. During discovery, however, Attorney A obtained copies of the same nursing notes, but by that time the notes had been altered to reflect the correct administration of the drugs and a notation that the original note was an error. Obviously, the unaltered version of the notes would be exculpatory as to Doctor A but possibly inculpatory to the hospital and to Doctor B. The altered version of the notes have been referred to in a deposition.

II
SUMMARY

A. If Attorney A becomes aware that other counsel in the litigation are relying on, as genuine, notes which Attorney A knows to be altered (whether fraudulently or not), it is Attorney A's obligation to notify all other counsel as to the existence of the alteration.

B. Following such disclosure, if other counsel attempts to introduce the altered notes in court as genuine, without notifying the court of the alteration, Attorney A should advise the court of the discrepancy.

C. Attorney A may not reach a settlement agreement, any part of which is intended to prevent disclosure of the alteration to other counsel.

III
ANALYSIS

A variety of Disciplinary Rules and Ethical Considerations compel the conclusion that Attorney A should disclose the unaltered notes to other counsel.

At the outset, it should be noted that circumstances surrounding the alteration of the notes is unknown to the Ethics Committee. It is possible that the change on the chart was made in the ordinary course of business by a nurse who simply realized that his or her original entry was erroneous. Because of this, it is impossible for this committee to form any specific opinion as to whether or not the evidence should be labeled as "falsified" or "fraudulent".

However, it is equally clear that a serious question exists as to the legitimacy of the documents produced and relied upon by other counsel. Without disclosure of the unaltered notes, a substantial risk exists that the resolution of the case by the judicial system will be based on falsified evidence. Attorney A has a duty to prevent this.

ABA Ethical Consideration 8-5 provides that unless constrained by his obligation to preserve the confidences and secrets of his client, a lawyer should reveal to appropriate authorities any knowledge he may have of any fraudulent, deceptive or otherwise illegal conduct by a participant in a proceeding before a tribunal or legislative body. Disciplinary Rule 7-102(B) adds that a lawyer who receives information clearly establishing that a person other than his client has perpetrated a fraud upon a tribunal, shall promptly reveal the fraud to the tribunal. Disciplinary Rule 7-102(A) also provides 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." Similarly, Rule 7-105 of the Rules of Professional Conduct of the California State Bar provides that:

"In presenting a matter to a tribunal, a member of the State Bar shall:

"(1) Employ . . . . such means only as are consistent with truth, and shall not seek to mislead the judge, judicial officer or jury by an artifice or false statement of fact or law . . . ."

Similarly, ABA Ethical Consideration 1-4 provides, in part, that ". . . . a lawyer should reveal voluntarily to . . . . officials all unprivileged conduct of lawyers which he believes clearly to be in violation of the Disciplinary Rules." (Disciplinary Rule 1-102; Disciplinary Rule 1-102(A); Los Angeles County Bar Association Formal Opinion No. 355.)

The foregoing authorities all lead to the conclusion that where an attorney learns that his opponent is producing or relying on altered evidence to the detriment of some third party, disclosure is warranted.

It is thus our opinion that Attorney A is obligated to disclose to counsel for all parties in the action copies of the unaltered document. If, after this disclosure, other counsel later attempts to introduce the altered version, it will be Attorney A's duty to disclose the alteration to the Court. Further, if a settlement of the litigation is reached as to Doctor A, Attorney A may not enter into any agreement with any party which is intended to or has the effect of precluding disclosure to the remaining parties of the existence of the alteration.

This is particularly true where, as here, a third party may have no reasonable means of learning about the alteration.

This opinion should not be construed as imposing a generalized duty to disclose impeachment or rebuttal evidence. Ordinary discovery procedures and evidentiary rules govern the disclosure and introduction of such evidence. This opinion relates only to those situations involving actual reliance on altered evidence where other litigants may be unaware of the falsification or may have no reasonable means of learning about it.

This opinion is advisory only, and is not binding upon the State Bar, the Board of Governors of the State Bar, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.