LEGAL ETHICS OPINION 1731 ATTORNEY'S DUTIES TO CLIENT AND
OTHERS WHEN CLIENT HAS BEEN
ARRESTED UNDER SOMEONE ELSE'S NAME
You have presented a hypothetical situation in which an attorney
represents a client in a criminal matter in which sentencing is
pending. Prior to sentencing, the client contacts the attorney
and advises she has been arrested for driving while intoxicated
and driving with a suspended license. The client also advises
that at the time of this arrest, she provided false
identification (her girlfriend's driver's license) and was
arrested under her girlfriend's name.
Under the facts you have presented, you have asked the committee
to opine as to 1) what ethical obligations the attorney has to
the client and to the client's friend whose identification was
used in the second arrest; 2) how to advise the client when she
inquires whether she should appear in court on the driving while
intoxicated and driving on a suspended license charges; and 3)
what ethical obligations the attorney has to the court concerning
the pre-sentencing investigation in the original criminal matter.
The appropriate and controlling disciplinary rules relative to
your inquiry are DR 4-101 requiring the preservation of client
confidences and secrets; DR 5-105 which addresses an attorney's
representation of multiple clients with conflicting interests; DR
2-108 which sets out the requirements for termination of or
withdrawal from the representation; and DR 7-102 (A) (3) and (5)
which require that the attorney not conceal from the court that
which he is required by law to reveal and not misrepresent facts
or law to the court. The committee has previously opined that
information given by a client to an attorney concerning activity
by the client that may constitute a past crime must be protected
by the attorney as a confidence or secret under DR 4-101 (B).
Generally, absent client consent, information concerning a
client's past criminal conduct cannot be revealed. Legal Ethics
Opinion 364 (1980) (A lawyer may not advise a Commonwealth's
Attorney of his client's commission of a crime unless the client
consents); Legal Ethics Opinion 1087 (1988) (A lawyer cannot
reveal his client's past criminal conduct).
DR 4-101 (C) (3) states that an attorney may reveal information
that clearly establishes that his client has perpetrated a fraud
on a third party, but the fraud must be related to the subject
matter of the representation. The committee believes that this
rule does not apply, however, because the subject matter of the
attorney's representation of the client (sentencing hearing on
criminal drug charge) and the fraud committed by the client
(misrepresentation of identity to police officer during arrest
for DWI) are unrelated. Therefore, the attorney may not reveal
the client's fraud unless the client consents.
As to the first question, in the facts you present, the committee
believes that the attorney cannot advise or assist both the
client and her girlfriend, charged with a criminal offense she
did not commit, as a direct consequence of the client having
perpetrated a fraud by misrepresenting her identity to the
police. Due to the inherent and direct conflict, the attorney
cannot adequately represent the interests of both parties, and
the conflict cannot be waived. DR 5-105 (C). In fact, the only
communication which the attorney may have with the client's
girlfriend is for her to seek legal advice from another attorney,
because of the conflicting interests of the client and the
girlfriend. DR 7-103 (A) (2).
Your second question is whether the attorney should advise the
client to appear in court on the scheduled court date for the
trial of the criminal charges of driving while intoxicated (DWI)
and driving on a suspended operator's license (DOSL). At this
juncture, the committee believes that the attorney must inform
the client of the potential adverse legal consequences she faces
if she does not voluntarily come forward with the truth
concerning her actions during the arrest, which will likely be
discovered regardless of whether she cooperates. The attorney
should include in this discussion the risk that the client will
face more serious criminal charges than those for which she was
arrested. In assisting his client to reach a proper decision, it
is proper and desirable for the lawyer to identify those factors
which may lead to a decision that is morally just, as well as
legally permissible. EC 7-8. In the final analysis, should the
client choose to remain silent and not appear in court to explain
the truth, it is the opinion of the committee that the attorney
must abide by the client's decision, even if it is against the
attorney's advice and judgment. Id.
Your third inquiry involves the lawyer's ethical duties in his
continuing representation of the client at her sentencing hearing
in three weeks on the drug charges to which she pled guilty.
Specifically, you ask what ethical duty, if any, does the
attorney owe the court to correct or add to the pre-sentence
report or memorandum if it fails to include information about the
client relative to the charges of DWI and DOSL? DR 4-101 (D)(1)
requires an attorney to reveal information, as admitted to the
attorney by the client, which clearly establishes that the client
intends to commit perjury, but the facts in your inquiry do not
lead necessarily to the conclusion that the client must testify
at the sentencing hearing or that the attorney must vouch for the
accuracy of the pre-sentence memorandum. Of course, the client
may not perpetrate a fraud on the court, nor may the attorney
affirmatively misrepresent factual matters at the hearing. DR 4-
101 (D) (2); DR 7-102 (A) (5). But what if neither attorney nor
client is required to make any statements in court concerning the
contents of the report or its accuracy?
A lawyer must always balance his duty as an advocate to zealously
represent the client's interests and his duty of candor to the
court. In Legal Ethics Opinion 1186 (1989), the committee
concluded that a defense lawyer is under no obligation to advise
the court that it has overlooked a criminal charge, since the
facts are on the public record and the lawyer has done nothing to
conceal them. The committee relied on DR 7-101 (A) (3) stating
that it would be unethical to reveal information that would
prejudice or damage the client. In Legal Ethics Opinion 1400
(1991), the committee opined that a criminal lawyer representing
a client found guilty of a felony is under no duty to reveal that
the sentencing document later signed by the judge erroneously
states the defendant was found guilty of a misdemeanor (assuming
that the lawyer did not endorse the document or otherwise
participate in drafting it). In fact, the lawyer was ethically
obligated not to reveal the error since the revelation would
damage his client. The opinion assumed that the lawyer did not
endorse the document or otherwise participate in its creation.
Similarly, in Legal Ethics Opinion 1215 (1989), the committee
concluded that a defense attorney was not required to inform the
court or the Commonwealth that the court had rescheduled a trial
date beyond the statutory limitation period for the prosecution
of a particular felony. The defense attorney had not sought the
continuance nor had he agreed to it.
An attorney shall not intentionally mislead the court nor conceal
that which he is required by law to reveal. DR 7-102 (A) (3),
(5). In the facts you present, the committee is unaware of any
ethical requirement to voluntarily reveal unadjudicated criminal
charges during a sentencing hearing.[1] However, the committee
cautions that the attorney must be careful not to mislead the
court in any statements made to the judge concerning the pre-
sentence report. In that regard, you ask the committee how the
attorney should respond to the court if it asks counsel if
counsel has any corrections or additions to make to the report.
The committee believes that the answer to this question depends
on how the question is phrased and presented by the court. The
committee believes that the appropriate course of action is for
the attorney to function, within the bounds of the law and
ethics, as an advocate in the adversary system. This means that
the attorney should avoid revealing information that would
materially prejudice or damage the client, unless required by law
or the disciplinary rules to do so. Inviting the court to order
such disclosure, under the facts you present, is not in the
client's best interest. If the attorney is asked directly by the
court whether the client has a prior criminal record, the
committee believes that the attorney must be truthful in his
response and not mislead the court.
You ask whether the attorney may permissibly withdraw from the
representation of the client so as to avoid the ethical dilemma
presented in the preceding paragraph. Withdrawal would require
leave of court which may be difficult to obtain three weeks
before the sentencing hearing, especially if the attorney
represented the client from the beginning. DR 2-108 (C).
Withdrawal would require a motion and notice to the client who
may object. The court may also expect, on such short notice,
good cause or explanation of the basis for the motion to
withdraw. This puts the attorney back squarely in the ethical
dilemma presented in the preceding paragraph concerning what to
disclose to the court. Moreover, absent one of the specific
grounds enumerated in DR 2-108 to support termination of the
attorney-client relationship, the attorney may not withdraw if
there is material prejudice to the client. DR 2-108 (B) (1).
The committee is of the opinion that withdrawal cannot be
effectuated without prejudice to the client. Therefore, in the
committee's opinion, withdrawal is not an option available to the
attorney to resolve the dilemma presented in the preceding
paragraph. However, the committee believes that the attorney has
an obligation to explain to the client how the representation
might be limited at the sentencing hearing, so as to avoid the
risk of disclosing the client's criminal activity. The attorney
would be required to withdraw, however, if the client were
convicted of the criminal charges before the sentencing hearing,
had misrepresented to the court that she had no prior
convictions, and the attorney was unable to convince the client
to rectify the fraud on the court. DR 4-101 (D) (2); DR 2-108
(A) (1).
Committee Opinion
June 29, 1999
[1] Even if the client were convicted of the criminal charges of
DWI and DOSL prior to the sentencing hearing, the burden is on
the Commonwealth to document these convictions in the pre-
sentence report. A defense attorney has no obligation to
disclose a client's record of prior convictions in order to
prevent the court from imposing sentence on incomplete or
inaccurate information, provided that neither the defense lawyer
nor the defendant affirmatively misrepresent to the court that
there were no prior convictions. North Carolina State Bar Op.
98-5 (1998); Texas Prof. Ethics Op. 504 (1995); Fla. State Bar
Ass'n Op. 86-3 (1986). The voluntary revelation of such
information without the client's consent would breach the
lawyer's duty of confidentiality.
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