Must a criminal defense lawyer reveal a client's prior conviction at sentencing if it's a public record and the court doesn't know?

Currency note

This opinion was issued in 1986, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rules 7-105 and 2-111 and Business and Professions Code sections 6068 and 6128, areas now addressed by Model Rules 1.6 (confidentiality), 3.3 (candor toward the tribunal), and 1.16 (withdrawal) and the corresponding California Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered a criminal sentencing in which the client had told the lawyer of a prior conviction that was relevant to the judge's decision and a matter of public record, but unknown to the court, and the client had not consented to disclosure. It separated the attorney-client privilege from the broader statutory duty: the prior record was not privileged because it was independently a public record, but Business and Professions Code section 6068(e) imposes a duty beyond the privilege.

The committee read section 6068(e) as having two parts, both engaged here. The duty to maintain inviolate the client's confidence means the lawyer may not breach the trust reposed by the client, and disclosure, presumably withheld because of its prejudicial nature, would harm the client and be inconsistent with that trust. The duty to preserve the client's secrets, drawing on the ABA definition of "secrets" as information whose disclosure would be embarrassing or detrimental, also forbids disclosure because the record qualifies as a secret. The committee concluded that section 6068(e) precludes disclosure, whether volunteered or in response to the court's inquiry, absent the client's consent.

Against that, the committee set the duty of candor under section 6068(d) and former Rule 7-105, the duty to maintain respect for the courts under section 6068(b), and the misdemeanor of intentionally deceiving a judge under section 6128. Following the majority of ABA Formal Opinion 287, it concluded neither duty can be subordinated to the other: the lawyer should not reveal the record and should not deceive the court, so the lawyer should remain silent. If the court appears to rely on the silence as an affirmation that there is no prior record, the lawyer must tell the court the silence is not an affirmation and that it is not appropriate to comment further. If asked directly, the lawyer still should not disclose but should suggest the court use other sources, such as the prosecution. The committee concluded that, unlike ABA Opinion 287, withdrawal is mandatory only if continued representation would itself violate a statute or rule, and it expressly declined to opine on the self-incrimination questions or on the propriety of a judge asking defense counsel about a client's record.

Common questions

Q: Must a defense lawyer tell the sentencing court about a client's prior conviction that the court missed?

A: No. The committee concluded that section 6068(e) bars disclosure of the prior conviction without the client's consent, even though the record is public, because it is a protected confidence and secret.

Q: How does the lawyer avoid deceiving the court while protecting the client?

A: The committee concluded the lawyer should remain silent, neither revealing the record nor affirming its absence, since a lawyer may never intentionally mislead the court.

Q: What if the court seems to treat the lawyer's silence as confirming no record?

A: The committee concluded the lawyer must then tell the court that the silence is not intended as an affirmation and that it is not appropriate for the lawyer to comment further.

Q: What if the judge asks the lawyer directly whether the client has a record?

A: The committee concluded the lawyer still should not disclose the record but should suggest that other sources, such as the prosecution, are more appropriate to determine that information.

Background and rules framework

The opinion interprets former Rule 7-105 (employing only means consistent with truth and never seeking to mislead the judge) and former Rule 2-111 (withdrawal) of the California Rules of Professional Conduct, with Business and Professions Code section 6068, subdivisions (b) (respect due the courts), (d) (candor), and (e) (confidences and secrets), and section 6128 (misdemeanor for deceiving a judge). These areas are now addressed by Model Rules 1.6 (confidentiality), 3.3 (candor toward the tribunal), and 1.16 (withdrawal) and their California counterparts.

Citations and references

Rules of Professional Conduct:

• Former California Rule 7-105 (means consistent with truth; not misleading the judge)
• Former California Rule 2-111 (withdrawal)

Statutes:

• Business and Professions Code section 6068, subdivisions (b), (d), and (e)
• Business and Professions Code section 6128 (deceiving a judge)
• Evidence Code sections 950 et seq. (attorney-client privilege)

Cases:

• In re Boone (1897) 83 F. 944; In re Soale (1916) 31 Cal.App. 144; Anderson v. Eaton (1930) 211 Cal. 113, the trust reposed in the attorney
• Industrial Indemnity Co. v. Great American Insurance Co. (1977) 73 Cal.App.3d 529, disclosure inconsistent with the relationship of trust
• Franklin v. State Bar (1986) 41 Cal.3d 700, less-than-candid response to an inquiry
• Griffis v. S.S. Kresge Co. (1984) 150 Cal.App.3d 491, duty to inform the court of material facts
• Murphy v. Waterfront Commission (1964) 378 U.S. 52, the privilege against self-incrimination

Other opinions cited:

• ABA Committee on Professional Ethics, Formal Opinion 287 (1953): disclosure of a client's record to a sentencing court
• State Bar of California Formal Opinion 1983-71: the ABA Code is not binding in California

See also

• CA Ethics Op. 1986-89: Stolen Property and Client Confidences
• CA Ethics Op. 1981-58: Disclosing a Client's Damaging Report to Third Parties
• CA Ethics Op. 1988-96: Disclosure That Would Breach the Duty of Confidence

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1986-87.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1986-87

ISSUE:

In the absence of consent by an attorney's client, should the attorney reveal the client's prior criminal conviction during a sentencing proceeding where such prior conviction is a public record and relevant to the proceeding?

DIGEST:

The revelation of the client's prior criminal conviction without the consent of the client would breach the attorney's duty to maintain the client's confidence and preserve the client's secrets. However, the attorney also has a duty not to intentionally mislead or deceive the sentencing court. Both duties must be upheld.

AUTHORITIES INTERPRETED:

Rules 2-111(B)(2) and 7-105 of the Rules of Professional Conduct of the State Bar of California.

Business and Professions Code sections 6068 and 6128.

INQUIRY

This inquiry concerns a criminal sentencing proceeding. During representation of a criminal client, the client reveals a prior criminal conviction to the attorney. The prior record is relevant to the sentencing judge's decision, and it is a matter of public record. The court, however, is not aware of the prior conviction. The client has not given consent to the attorney to reveal the record. Should the attorney volunteer the prior conviction to the court during the sentencing proceeding? Further, if the court asks the attorney whether the client has a prior record, how should the attorney respond?

DISCUSSION

Under the facts, the client informed the attorney of the prior criminal record. However, this information is not protected against disclosure to the court under attorney-client privilege (Evid. Code 750 et. seq.) for the reason that it is independently a matter of public record. However, Business and Professions Code section 6068, subdivision(e) imposes a duty on the attorney extending beyond the attorney-client privilege. Business and Professions Code section 6068, subdivision(e) provides:

"It is the duty of an attorney to do all of the following:...

(e) to maintain inviolate the confidence, at every peril to himself [or herself] to preserve the secret, of his or her client."

This statute has two parts, each of which applies to the facts presented here. The Committee interprets the first part of the statute - "to maintain inviolate the confidence.. . of the client" - to mean that an attorney may not do anything to breach the trust reposed in him or her by the client. (In re Boone (1897) 83 F. 944, 952-953; In re Soale (1916) 31 Cal.App. 144, 153; Anderson v. Eaton (1930) 211 Cal.App. 113.) In this case, the consent of the client has not been given and presumably it has been withheld precisely because of the prejudicial nature of such a disclosure. Disclosure would harm the client and be utterly inconsistent with the relationship of trust protected by section 6068(e). (Industrial Indemnity Company v. Great American Insurance Company (1977) 73 Cal.App.3d 529, 536 [140 Cal.Rptr. 806].)

Business and Professions Code section 6068, subdivision(e) also requires an attorney to "preserve the secrets of his client." Although the term "secrets" is not defined in the California Rules of Professional Conduct, a definition can be found in the ABA Code of Professional Responsibility, DR 4-101(a)1: "information gained in the professional relationships... the disclosure which would be embarrassing and would be likely to be detrimental to the client..." This second aspect of section 6068, subdivision(e) also forbids disclosure, because the criminal record is properly classified as a "secret." Thus, section 6068, subdivision(e) precludes disclosure, whether voluntary or in response to an inquiry from the court, by the lawyer, absent consent from the client.

Attorneys also owe a duty of candor to the court. "It is the duty of an attorney (t)o employ... such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." (Bus. & Prof. Code, 6068(d) and rule 7-105 of the Rules Prof. Cond.) An attorney must maintain the respect due the courts of justice and judicial officers. (Bus. & Prof. Code, 6068(b).) Further, an attorney is guilty of a misdemeanor for intentionally deceiving a judge. (Bus. & Prof. Code, 6128.) In sum, these provisions prohibit an attorney from intentionally misleading or deceiving a court.2

A dilemma may thus arise because an attorney has a duty of candor to the sentencing judge with respect to a client's criminal record and also has a duty to maintain the client's confidence. This dilemma can be resolved.

The Committee on Professional Ethics of the American Bar Association has suggested the proper attorney behavior in Formal Opinion No. 287 (1953). Beginning with an inquiry similar to the present one, the ABA Committee majority said:

"... the lawyer is not bound by fidelity to the client to tell the court what he knows to be an untruth, and should ask the court to excuse him from answering the question, and retire from the case, though this could doubtless put the court on further inquiry as to the truth.

"Even, however, if the court does not directly ask the lawyer this question, such an inquiry may well be implied from the circumstances, including the lawyer's previous relations with the court ....

"If under all the circumstances, the lawyer believes that the court relies on him as corroborating the correctness of the (prior record status) the lawyer's duty of candor and fairness to the court require him, in our opinion to advise the court not to rely on counsel's personal knowledge as to the facts of the client's record... No client may demand or expect of his lawyer, in the furtherance of his cause, disloyalty to the law whose minister he is .... " (Emphasis added.)

The dissent emphasized the duty of candor, stating that the lawyer is obligated to inform the court of the prior record. We believe the majority opinion is more persuasive. It is the opinion of this Committee that neither the duty of attorney confidence nor the duty of candor can be subordinated one to the other. Both duties must be upheld. An attorney may never intentionally mislead or deceive a judge. An attorney must also maintain the confidence of the client. An attorney should not reveal the client's prior criminal record to the court and should not intentionally deceive or mislead the court. The attorney should remain silent.

If the attorney's silence appears to be relied upon by the court as an affirmation that there is no prior record, the attorney is obligated by the duty of candor to inform the court that the silence is not intended as an affirmation, and that it is not appropriate for the attorney to comment further.

It is the Committee's opinion that if the attorney is expressly asked by the court whether the client has a prior record, the record still should not be disclosed, but the attorney should suggest to the court that other sources would be more appropriate to determine such information. The question, for example, might be deflected to the prosecution. Other responses which do not reveal the record and are not intended to deceive or mislead the court may also be proper.3

Unlike the majority opinion in ABA Formal Opinion No. 287, this Committee does not believe that the attorney would always be required to withdraw from the case. Withdrawal would be mandatory only if continued representation would result in a violation of a statute (e.g., Bus. & Prof. Code, 6068, subd.(e)) or Rule of Professional Conduct.4

The Committee recognizes that the facts of this inquiry may also raise constitutional questions concerning the privilege against self-incrimination. These and similar questions are beyond the authority of the Committee. Therefore, the Committee expresses no opinion on them.5

The Committee also expresses no opinion on the propriety of a judge asking a defense attorney about the prior criminal record of the attorney's client. The ethical and constitutional concerns confronting the defense attorney would be lessened if judges did not require the defense attorney, expressly or implicitly, to reveal the client's record.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

1 See Cal. Formal Opinion 1983-71. (The ABA Model Code of Professional Responsibility, like sister state rules and court opinions, is not binding in California although it may be persuasive in those instances where there is no controlling Rule of Professional Conduct, statute or court ruling in California.)

2 See also, Franklin v. State Bar (1986) 41 Cal.3d 700. (Attorney misleading hearing panel in State Bar disciplinary proceeding by a less than candid response to an inquiry.)

3 Compare Griffis v. S.S. Kresge Co. (1984) 150 Cal.App.3d 491. (Attorney under a legal duty to inform the court of all facts material to the court's inquiry concerning five-year limitation period for bringing action to trial in civil case.)

4 See Rule of Professional Conduct 2-111.

5 The policy underlying the privilege is extensively discussed at 8 Wigmore on Evidence (McNaughton rev. ed., 1961), page 317. Quoting a portion of the Wigmore discussion, the United States Supreme Court has said, "It (the privilege) reflects many of our fundamental values and most noble aspirations: our willingness to subject those suspected of crime to the cruel dilemma of self-accusation, perjury or contempt our preference for an accusatorial rather than an inquisitorial system of criminal justice .... " Murphy v. Waterfront Commission (1964) 378 U.S. 52, 55.