You have presented a hypothetical situation in which Attorney A
represents a defendant in general district court on two felony
warrants and on two capiases for failure to appear (FTA) on those
warrants.  The Commonwealth obtains direct indictments for these
same two FTAs but does not request the general district court to
nol pros the two capiases or otherwise inform the general district
court of the direct indictments.

You indicate that the defendant is arrested, and the circuit court
appoints Attorney B to represent the defendant on the felony FTAs. 
Hearings are scheduled for October 27 in the general district court
on the two felony warrants and two capiases.

Attorney B informs Attorney A of the felony FTAs in circuit court,
and Attorney A agrees to help B by pursuing a motion in general
district court to "dispose of" the capiases prior to the October 24
trial date in circuit court.  You further indicate that Attorney A
presents this motion on October 18, and neither A nor the Attorney
for the Commonwealth informs the court that felony charges are
pending in circuit court for the same FTAs.  The general district
court declines to rule on A's motion to dispose but continues it to
October 27, the time that had earlier been set for the capiases as
well as for the felony warrants.  A informs B that A was unable to
dispose of the capiases prior to the defendant's circuit court
trial, and B suggests that A file a motion in general district
court to reduce the defendant's bond.  A files such a motion to be
heard on October 24, 9:00 a.m., with the agreement that B will
argue the motion in A's stead, since A plans to be out of town on
that date.

The general district court declines to rule on the bond reduction
motion on October 24, explaining to B that the court had earlier
been informed that the prosecutor could not be in general district
court that morning because of commitments in circuit court.  You
advise that B then makes an oral motion to dispose of the capiases,
just as A's earlier written motion had sought to do.  B does not
advise the court of the coexisting felony charges in circuit court
and instead informs the court that the defendant wished to plead
guilty to the capiases and represents that the general district
court could appropriately deal with the capiases without a
prosecutor present, inasmuch as they deal only with matters
"between defendant and the Court," or words to that effect.

The general district court, notwithstanding its earlier decision to
defer until October 27 any ruling on the capiases, convicts the
defendant on both and imposes sentence.  Later that day in circuit
court, B obtains dismissal of the two felony FTA warrants on double
jeopardy grounds, based upon the convictions on the capiases in
general district court, but does not apprise the circuit court that
B had stood in to represent the defendant in general district court
earlier that day.  

You have asked the committee to opine under the facts of the
inquiry, (1) whether B and A are required to reveal to the general
district court the fact that the failures to appear charged in the
capiases are also the subject of felony charges in the circuit
court; and (2) whether B and A's failure to reveal the above
information is a failure to be "aboveboard" with the district
court, as that term is used in EC 7-33.

The appropriate and controlling Disciplinary Rules related to your
inquiry are DRs 7-102(A)(5) and 7-102(A)(7), which prohibit,
respectively, a lawyer from knowingly making a false statement of
law or fact, or from counseling or assisting his client in conduct
that the lawyer knows to be illegal or fraudulent.  Further
guidance can be found in EC 7-33, which provides, in pertinent
part, that a lawyer should be respectful, courteous, and aboveboard
in his relations with a judge before whom he appears. 

The committee has earlier opined that it is improper for an
attorney, either by omission or commission, to permit the court to
be misinformed as to his client's true identity.  See LEOs #350,

The committee is of the opinion that it is not per se improper for
B and A to fail to reveal to the general district court that the
failures to appear charged in the capiases were also the subject of
felony charges in the circuit court.  The committee opines that
there is no obligtion on the part of a defense attorney to inform
a court of a mistake by the Commmonwealth that would benefit the
defense attorney's client; however, if questioned directly, the
defense attorney may not make an affirmative representation which
is untrue.  See LEOs #1331 and #1400.  You indicate that B stated
to the general district court judge that the capiases dealt only
with matters "between defendant and the Court".  The Committee is
of the opinion that, if there was an agreement between B and A to
make such a statement, both would have violated DR 7-l01(A)(5)
which prohibits an attorney from knowingly making a false statement
of law or fact.  The Committee is of the further opinion that the
actions of B and A may also have been violative of DR 7-102(A)(7)
since they may have counselled or assisted their client, the
defendant, in conduct that they know to be fraudulent.

In addition, the committee is of the view that the conduct of B and
A falls short of the aspirational exhortations contained in EC 7-
33, in that they failed to be aboveboard with the judges in both
general district court and circuit court. 

[DR 7-102(A)(5) and (7); EC 7-33; LEOs 350, 1331, 1400]

Committee Opinion
February 17, 1995