Legal Ethics Opinion 1496

Confidences and Secrets-Zealous Representation: Defense Counsel
Disclosing Criminal Client's Exhaustion or Abandonment of
Appellate Rights

You have presented a hypothetical situation in which a
Commonwealth's Attorney urges to the Circuit Court that defense
counsel is required to notify the prosecutor and/or the Court
when a client, admitted to bail but subject to incarceration, has
exhausted or abandoned appellate rights. 

You have asked the committee to opine whether, under the facts of
the inquiry, a defense counsel has any ethical obligation to
inform opposing counsel or the court when appellate efforts cease
for a client sentenced to incarceration but at liberty pending
appeal.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 7-101(A)(3) which states that a lawyer shall
not intentionally prejudice or damage his client during the
course of the professional relationship, except as required under
DR 4-101(D); and 7-102(A)(3) which states that a lawyer shall not
conceal or knowingly fail to disclose that which he is required
by law to reveal.

The committee has consistently and repeatedly opined that an
attorney may not reveal information to the court to the detriment
of his client.  See LEOs #1186, #1215, #1400.  Cf.  DR 4-l0l(C)
and (D).

The committee is of the opinion that defense counsel is not under
any affirmative obligation to reveal that his client, admitted to
bail but subject to incarceration, has exhausted or abandoned his
appellate rights, unless the client has requested that the
attorney so inform the prosecutor and/or the court.  Absent such
a request, the committee opines that it would be improper, under
DR 7-101(A)(3), for the attorney to reveal the information.

The committee further believes that since the information in
question is readily available to the prosecutor and/or the court,
defense counsel is not engaging in attempting to conceal or
deliberately failing to disclose that which he is required by law
to reveal pursuant to DR 7-102(A)(3).

Commit992