You have presented a hypothetical involving a criminal defense attorney’s selection of a bench trial for her client.  The attorney serves as an assistant public defender and was assigned the case of Mr. Smith.  At the preliminary hearing, the matter was certified for trial to the Circuit Court.  Local rules require that the defense attorney advise the court prior to the next docket call whether to schedule the case as a jury trial or a bench trial.  If set as a bench trial, the court does not summons a jury.  The attorney had been unable to contact her client[1] and was, therefore, unable to determine if he wishes to waive a jury trial and be tried by the court.  Aware that juries have imposed lengthy sentences in similar cases, the attorney assumed the defendant would not want a jury trial.  She advised the Commonwealth’s Attorney and the court that she wished the matter to be set for trial as a bench trial.  She did not inform the prosecutor or the court that she had not spoken with her client, nor had he consented to waiving the jury trial. The case was set on the court’s docket as a bench trial.  On the day of the trial, with the witnesses present, the defendant was asked by the judge if he consented to waiving a jury and being tried by the court.  The defendant said that he did not consent and requested a jury trial.  As a result, the case had to be continued to a later date.


Regarding this hypothetical, you have asked the following questions:


1)  Does the fact that the lawyer had requested that the case be set as a bench trial, thereby waiving the defendant’s right to a jury trial, without express authorization from the client to do so, violate Rule 1.2(a)?


2)  Does the lawyer’s failure to disclose to the court that she had not consulted with her client regarding waiving a jury and that she did not have authority from her client to do so constitute an affirmative misrepresentation to the court?


Rule 1.2 governs the parameters of the scope of an attorney’s authority.  Rule 1.2 provides as follows:


  (a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (b), (c), and (d), and shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision, after consultation with the lawyer, whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.


    (b) A lawyer may limit the objectives of the representation if the client consents after consultation.


    (c) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.


    (d) A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.


    (e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.



Specifically, the rule addresses which decisions may be made by the attorney and which are within the exclusive purview of the client.  In many instances, as indicated by the language of paragraph (a) of the rule, the determination of what decisions are for the lawyer and which are for the client involves a careful analysis of means versus objectives.  See e.g., LEO 1816 (determining whether an attorney must respect a client’s directive to put on no defense where the client is hoping for the death penalty).  The present situation is not such a case.  Unlike the decision to be made in LEO 1816, the present situation is addressed expressly on the face of the rule.  Rule 1.2 (a) highlights the decision “whether to waive a jury trial” as incontrovertibly one to be made by the client.  It is outside the scope of an attorney’s authority to decide that constitutional right for his client; the attorney must consult with the client as to the client’s choice regarding a jury trial versus a bench trial. 


When the attorney in the present scenario assumed her client would like to waive a jury trial, failed to consult with him prior to informing the court on the issue, and failed to consult with her client even after informing the court of the jury trial waiver, this attorney was acting outside the scope of her authority.  Such unilateral action regarding the right to a jury trial was in violation of Rule 1.2.


Your second question asks, in light of the Rule 1.2 violation, whether the attorney’s remarks to the court constituted an impermissible misrepresentation under Rule 3.3(a)(1).  That provision establishes the following prohibition:  “An attorney shall not knowingly make a false statement of fact or law to a tribunal.”   Similarly, Rule 8.4(c) prohibits an attorney from engaging in conduct involving “dishonesty, fraud, deceit or misrepresentation which reflects adversely on the lawyer’s fitness to practice law.”


In the present scenario, the attorney states to the court that she wishes to have the client’s case set for a bench trial.  On its face and with no context, the statement does not seem to be false or involve misrepresentation; she does in fact wish to have a bench trial.  However, the remark must be considered in context.  The following authorities, among others, each contribute to the common understanding by the criminal bar that a client can only waive the constitutional right to a jury trial through voluntary, intelligent consent:


1) Rule 1.2, as discussed above;


2)  Jones v. Commonwealth, 24 Va. App. 636, 484 S.E.2d 618 (1997)(noting that an attorney may not, without client authorization, surrender an accused’s right to a jury trial);

3) Virginia Code Section 19.2-257 (allowing for bench trials for felony cases only where the accused consents after being advised by counsel); and


4) Rules of the Virginia Supreme Court, Rule 3A:13(b) (allowing for a bench trial in Circuit Court only after the court determines that the accused’s consent was voluntarily and intelligently given).  


The Committee opines that is unlikely that this defense attorney, employed as a public defender, was ignorant of this established legal principle.  Assuming, therefore, that the attorney was cognizant of the requirement for proper consent from the client, the Committee opines that the attorney was presenting a falsehood, a misrepresentation to the court when she elected the bench trial on behalf of her client.  The Committee notes Comment 2 to Rule 3.3, stating in pertinent part that “there are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.  The Committee considers the present scenario to present such circumstances.  When this defense attorney elected a bench trial on behalf her client, the prosecutor and the court would each have reasonably relied upon that statement as indicating that she had consulted with her client to make that election, as such consultation is a prerequisite to electing against the right to a jury trial.  Thus, election of a bench trial together with a failure to disclose the lack of client consent means that this representation to the court may, under certain circumstances, constitute an affirmative misrepresentation.


The only other, less likely, explanation for this attorney’s statement, despite no consent from her client, would be that she in fact was completely ignorant of the requirement that the client must provide voluntary, intelligent consent.  The Committee finds such ignorance of this established principle unlikely in an attorney whose practice is exclusively criminal defense, such as a public defender.  If that nonetheless were the case, there could be no knowing falsehood or misrepresentation.  However, such ignorance of the constitutional rights of a criminal defendant would raise serious question as to whether the attorney had met her duty of competence under Rule 1.1.[2]  The limited facts provided of course do not establish conclusively whether this attorney was operating out of ignorance or if instead she was knowingly making a false representation.  If she knew that proper consent was required, that she did not have it, and that her election statement would convince the court and the prosecutor that she did have that consent, then her failure to disclose that she had not discussed the matter with her client was an impermissible, affirmative misrepresentation in violation of both Rules 3.3 and 8.4.


This opinion is advisory only, based only on the facts you presented and not binding on any court or tribunal.


Committee Opinion

January 10, 2006


[1]Pursuant to Rule 1.16(4), the Committee notes that the appropriate course of conduct for an attorney when faced with the failure of the client to cooperate by failing to maintain contact is to move the Court for permission to withdraw.  The facts presented in the hypothetical do not provide sufficient information for an opinion on that course of conduct.


[2] Rule 1.1 states as follows, “A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”