Lawyers have no obligation to volunteer
information learned through privilege.
I had a case where the court system did not pick up on the fact that my client had a prior DUI several years ago but within the 10-year window as set forth in the statute. No one ever asked me if my client had a prior record. The client did not have to fill anything out. Based on the record provided by the probation department, the court indicated this was a first offense and sentenced accordingly. Did I do anything unethical?
No. This is always one of those difficult areas. A lawyer learns about a client’s prior record from talking to the client. That is within the attorney-client privilege under Rule 1.6 of the Rules of Professional Conduct. That rule indicates anything pertaining to the representation you learn from the client is privileged. The fact that it is public record someplace else does not change that.
But the lawyer has to be careful not to mislead the court. If the lawyer in any way suggests to the court or falsely states there is no prior record or acquiesces if asked directly by the court, then there could be a potential problem.
But if the county involved does not specifically ask the question of the client or the lawyer and the judge doesn’t ask but instead relies on the prior record as provided by the probation department, a lawyer who has not presented this record has no obligation to correct anything. The lawyer hasn’t presented anything false. Under Rule of Professional Conduct 3.3, titled “Candor to a Tribunal,” a lawyer cannot make a false statement of a material fact to a tribunal or offer evidence a lawyer knows to be false. Under Rule 3.4, a lawyer can’t obstruct another party’s access to evidence.
In this case, the lawyer has learned something from the client. That information is privileged. The lawyer can’t break the privilege. Obviously, if the judge asks the lawyer directly, then the lawyer has to either assert the privilege or get the client’s permission to reveal what is known. But if the lawyer is not asked, a lawyer has no obligation to take affirmative steps to hurt his or her client.
The other pertinent rule is Rule 4.1, involving truthfulness in statements. A lawyer cannot make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid criminal or fraudulent action by a client.
But in this case, there is nothing the client has done that requires the lawyer to disclose anything.
As long as the client has not affirmatively said there is no prior record, as long as the client has not answered any form saying there is no prior record, and as long as the lawyer has not so stated, then the lawyer has no obligation to correct an incorrect record search provided by the probation department.
Every lawyer wants to do the right thing. Every lawyer wants to make sure justice is done and the law is upheld. But every lawyer has an obligation also to his or her client and an obligation to protect attorney-client privilege.
In this very difficult situation, the lawyer has to walk the tightrope. From the question as posed, it appears the lawyer did the right thing. Even though the client luckily got away with a first-offense as opposed to a second-offense penalty, neither lawyer nor the client misled the court.
Therefore, to answer the question, the lawyer had no obligation to volunteer what the lawyer learned from the privilege since the lawyer had not presented false information or affirmatively, either directly or by acquiescence, misled the court in any fashion. Criminal law is never for the tenderhearted. Sometimes lawyers have to make these close judgment calls. But in this case, it appears that the correct action was not to reveal the information under the facts as stated.
Court orders can never be disregarded,
even to protect a client’s interest.
Recently, district attorney’s offices and judges have made it difficult to provide discovery to clients. If there is a suggestion there may be some witness intimidation, the district attorney and or the court has stated I am prohibited from giving the client discovery. I can only review it with the client, but not let the client keep it. This makes it very difficult, particularly if a client wants to study the material. Does my duty to my client override what the court system has said?
There is absolutely no duty to a client that would override a court order or an agreement not to give or disclose the discovery. The disclosure of discovery that the court has ordered not to be given to a client or an agreement not to do so is a very serious matter. Unfortunately, witnesses have become intimidated or killed in this modern age when discovery information has been provided. It is not unheard of that discovery will be placed on the Internet or on Facebook for others to see and for witnesses to then be threatened by people with a bad purpose. Similarly, discovery has been circulated throughout jails with the purpose of hurting witnesses.
A lawyer obviously has a duty to his or her client. But the lawyer, who is also an officer of the court, has a duty to the court. Every lawyer knows if there is an order or a court agreement, the lawyer must comply with the order. If the lawyer believes the order is wrong, then the lawyer has the right to petition for reconsideration or even seek appellate review.
But the lawyer cannot take it upon himself or herself to disregard court orders under some general theory that the lawyer has a duty to the client. Under Rule 3.3 of the Rules of Professional Conduct, involving candor to a tribunal, under Comment 12, the following is noted:
“Lawyers have a special obligation to protect the tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as bribing, intimidating or otherwise unlawfully communicating with a witness, juror, court official or other participant in the proceeding, unlawfully destroying or concealing documents or other evidence, or failing to disclose information to the tribunal when required by law to do so.”
Sometimes lawyers confuse the obligation to a client and zealousness in advocacy as an excuse to disregard the ethics rules or the law. That is a very serious misunderstanding and can have very bad consequences for a lawyer’s ability to practice.
Zealousness and going the extra mile for a client obviously are encouraged, within reason. But zealousness does not mean treating the opposing side badly. It does not mean jeopardizing people’s safety. It does not mean rude conduct or disregarding court orders, and it does not mean undivided loyalty to a client against the world.
There are limits to effective advocacy and zealousness and every lawyer must know the lines. That is why the Rules of Professional Conduct are there and why it is so important for all lawyers to understand them and understand where the line between ethical and unethical conduct lies.
It has become very frustrating, particularly in cases where clients are being indicted under the new Rules of Criminal Procedure, for many criminal lawyers. The old days of open discovery now seem to be gone. Discovery is given piecemeal. It is often blacked out. Often, one is not allowed to actually give it to the client. This new way makes it very difficult at times to be a criminal defense lawyer. But there is a reason and purpose.
These new rules can be challenged, as is being done by many lawyers. Lawyers can seek reconsideration or ask permission to give a document to a client if the lawyer believes it is necessary.
But the system of protecting a client’s interest has never reached the point where it is an excuse to disregard court orders and an excuse to jeopardize witnesses or the integrity of the system. Whether the case is civil or criminal, practicing law and trials is a serious business and not just a game. The practice of law must be done by the rules and played by professionals who must know the rules and act accordingly.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa., 19381.