Legal Ethics Opinion #1583

Zealous Representation Misconduct: Attorney's Obligation to
Return to Court Original Arrest Warrant Bearing Note as to

You have presented a hypothetical situation in which a Virginia
attorney has corresponded with a local General District Court
regarding whether a judge's markings on the back of an arrest
warrant for a third DUI amount to a conviction (there being no
judge's signature and no reference to guilt or innocence,
although an apparent sentencing disposition was written by
someone on the back of the arrest warrant). The existence or
nonexistence of a valid conviction would have great implications
for the restoration of the client's driving privileges.

You indicate that a judge of the court in question mails back a
letter to counsel regarding the inquiry and apparently,
inadvertently includes the original document that was the subject
of the inquiry (i.e., the warrant of arrest, with the reverse
section for the judge's findings).

You have asked the committee to opine under the facts of the

   (1)  whether counsel is under an ethical obligation to return
   the court record of the putative conviction to the court; 

   (2)  whether, if counsel is not so obligated, counsel may
   give the original court record to his client, without
   advising him as to what to do with it; 

   (3)  whether, if counsel is able to either keep the record or
   give it to his client, counsel may ethically present in a
   petition or pleading to the court a motion to the effect that
   since no record of conviction exists at the court, the court
   should advise the Division of Motor Vehicles, such that the
   conviction is deleted from the driver's record; and 

   (4)  whether, if counsel must return the record to the court,
   counsel may wait to do so until such time as the document
   becomes relevant to court proceedings, i.e., the point at
   which the argument is raised as to whether the back of the
   warrant indicates a conviction.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 7-101(A)(3)  which provides 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); DR 7-102(A)(3), (7), and (8) which state
respectively that a lawyer shall not conceal or knowingly fail to
disclose that which he is required by law to reveal; counsel or
assist his client in conduct that the lawyer knows to be illegal
or fraudulent; or knowingly engage in other illegal conduct or
conduct contrary to a Disciplinary Rule; and DR l-l02(A)(3 and 4)
which prohibit respectively a lawyer from committing a crime or
other deliberately wrongful act or from engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation any of
which reflects adversely on the lawyer's fitness to practice law. 
The committee responds to your inquiries relative to the facts
presented as follows:

   1. The committee is of the opinion that counsel must
      immediately return the court record of the putative
      conviction to the court.  Thus, the committee believes
      that failure to return the record to the court would be in
      violation of DR 7-102(A)(3), (7), and (8).  See also Va.
      Code Ann. l8.2-lll and l7-44, -45.

The facts indicate that the letter and warrant were sent to
counsel.  The committee, then, is of the opinion that it would be
improper, and violative of DRs 1-102(A)(3) and (4), for counsel
to use, without returning to the court, the original warrant of
arrest inadvertently sent.  

Since the committee has opined as above, responses to your
second, third, and fourth questions have been rendered moot. 
Committee Opinion
April 11, 1994