LEO: Disclosure - Misconduct - Representing LE Op. 1222

 

Disclosure - Misconduct - Representing a Client Within the Bounds

of the Law: Attorney Advising Client to Execute Agreement

Concealing Illegal Information About Another.

 

June 5, 1989

 

You have provided the Committee with a document related to a divorce case

wherein the attorney for the husband has apparently advised his client to

execute an agreement not to initiate criminal prosecution or provide

information which could result in criminal prosecution of the wife's

lover. The agreement also provides for the lover's reasonable visitation

with a child who was born to the wife during the marriage but whom the

wife states was fathered by the lover. The lawyer also signed the

agreement as attorney for the husband. An affidavit, executed by the lover

on the same day as the agreement, indicates that the wife and the lover

were users of heroin, cocaine, marijuana, and alcohol. You advise that the

documents were discovered during the course of a police narcotics

investigation.

 

You further advise that the crime of misprision of a felony, which is

retained in Virginia as an uncodified common law crime, makes criminal the

failure to report a felony. You indicate that a more recent codification

of the federal statute requires an additional element of a positive act of

concealment of the crime. Under Virginia Code 18.2-461, the

compounding or concealing of offenses is a crime if the agreement to

conceal the offense is granted in exchange for a pecuniary benefit or

reward or an engagement therefore.

 

The appropriate and controlling rules applicable to the situation are

DR:7-102(A)(7) and (8), which prohibit a lawyer from counseling or

assisting his client in conduct that with fee charges of lawyers and for

this reason he should explain is illegal or contrary to Disciplinary Rule.

 

The Committee is of the opinion that if the lawyer's conduct constitutes

misprision of a felon , then the activity of the attorney would apparently

be in violation of the Disciplinary Rules cited above. The resolution of

disputes of fact are not within the purview of the Standing Committee on

Legal Ethics.

 

Committee Opinion June 5, 1989

 

CROSS REFERENCES

 

See also LE Op. 1361.