Must a criminal defense lawyer disclose a client's prior convictions at sentencing if the prosecutor and court are unaware of them?

Plain-English summary

Numerous defense attorneys asked the committee whether they must disclose, before a client is sentenced, that the client has a record of prior convictions. The question commonly arose in DUI cases, where prosecutors sometimes did not discover a defendant's out-of-state priors but defense counsel knew of them, either because the client volunteered the information or because counsel discovered it during the representation; repeat offenders are sentenced more harshly.

The committee treated the lawyer's knowledge of the priors as a confidence or secret of the client under DR 4-101, which (with limited exceptions) forbids a lawyer to reveal confidences or secrets without the client's consent. It then examined Canon 7. Under DR 7-102(A)(3), the committee was unaware of any law placing an affirmative duty on defense counsel to disclose a client's criminal record. Under DR 7-102(A)(4) and (A)(5), counsel may not allow the client to falsely tell the court there are no priors and may not himself make such a false statement; and under DR 7-102(B)(1) together with DR 4-101(C)(2), a lawyer whose client falsely denied priors to the court would have to call on the client to correct the fraud and, if the client refused, reveal it.

The committee concluded that when the court is about to impose sentence based on incomplete or inaccurate information about the defendant's prior record, the lawyer has no duty to correct that information, provided that neither the lawyer nor the client affirmatively misrepresented to the court that there were no priors. If the court asks the attorney directly whether the client has prior convictions, the opinion states the attorney must protect the client's constitutional guarantees, citing Meehan v. State, 397 So.2d 1214 (Fla. 2d DCA 1981).

Currency note

This opinion was issued in 1986, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Must defense counsel volunteer a client's prior convictions at sentencing?

A: Per the opinion, no. When the court is about to sentence based on an incomplete record of priors, the lawyer has no duty to correct it, provided neither the lawyer nor the client affirmatively misrepresented that there were no priors.

Q: What if the client falsely tells the court there are no priors?

A: The opinion concluded a lawyer may not permit a client to make a false statement to the court; under DR 7-102(B)(1) and DR 4-101(C)(2), the lawyer must call on the client to correct the false statement and, if the client refuses, reveal the fraud.

Q: What if the judge asks defense counsel directly about priors?

A: The opinion states the attorney must protect the client's constitutional guarantees, citing Meehan v. State.

Background and rules framework

The opinion applies the Code of Professional Responsibility provisions on client confidences and secrets (DR 4-101; the predecessor to current Rule 4-1.6, Model Rule 1.6) and on conduct in litigation (DR 7-101 and DR 7-102; the predecessors to current Rule 4-3.3 on candor toward the tribunal, Model Rule 3.3). It distinguishes a passive failure to volunteer adverse information, which the rules did not forbid here, from an affirmative misrepresentation, which they did.

Citations and references

Rules of Professional Conduct:

• Fla. Rule 4-1.6 (confidentiality) / Model Rule 1.6 (the opinion analyzes predecessor DR 4-101)
• Fla. Rule 4-3.3 (candor toward the tribunal) / Model Rule 3.3 (the opinion analyzes predecessor DR 7-102)

Cases:

• Meehan v. State, 397 So.2d 1214 (Fla. 2d DCA 1981)

Other opinions cited:

• Fla. Ethics Opinion 75-19

See also

• FL Bar Ethics Op. 90-1: Criminal Client Fleeing to Avoid Court
• FL Bar Ethics Op. 93-3: Inadvertently Disclosed Privileged Documents
• FL Bar Ethics Op. 95-4: Joint Representation and a Separate Confidence

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-86-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-86-3-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 86-3
December 15, 1986
Advisory ethics opinions are not binding.

A defense lawyer has no obligation to disclose a client's record of prior convictions in order to prevent a court from imposing sentence on the basis of incomplete or inaccurate information about the client's record, provided that neither the defense lawyer nor the defendant affirmatively misrepresented to the court that there was no priors.

CPR: DR 4-101, EC 4-4, DR 7-101(A), DR 7-102
Opinion: 75-19
Case: Meehan v. State, 397 So.2d 1214 (Fla. 2d DCA 1981)

Numerous defense attorneys have requested an advisory opinion concerning their obligation to disclose, or not to disclose, before a client is sentenced for a criminal offense, that the client has a record of prior convictions. The question usually arises in DUI cases. It appears that prosecutors sometimes do not discover the defendant's out-of-state prior convictions. The defense attorney knows of the priors either because the client volunteered the information or because the attorney independently discovered the priors in the course of the representation. Repeat DUI offenders are sentenced more harshly than first-time offenders.

Defense counsel's information about the client's prior convictions, volunteered by the client or independently discovered by the attorney in the course of the representation, is either a confidence or a secret of the client within the meaning of DR 4-101. DR 4-101(A) defines "confidence" as "information protected by the attorney-client privilege under applicable law." "Secrets" are defined as "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." EC 4-4 explains that an attorney's ethical obligation to guard the confidences and secrets of a client "exists without regard to the nature or source of information or the fact that others share the knowledge."

With certain limited exceptions, DR 4-101 forbids an attorney to reveal confidences or secrets except with the consent of the client. The exception that may be applicable to information about prior convictions is DR 4-101(C)(2), which permits a lawyer to reveal confidences or secrets "when permitted under disciplinary rules."

An attorney's conduct in judicial proceedings is governed by Canon 7 of the Code of Professional Responsibility. DR 7-101(A) forbids an attorney to intentionally:

(3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).

DR 7-102 provides in pertinent part:

(A) In his representation of a client, a lawyer shall not:

(3) Conceal or knowingly fail to disclose that which he is required by law to reveal;
(4) Knowingly use perjured testimony or false evidence;
(5) Knowingly make a false statement of fact; . . .

(B) A lawyer who receives information clearly establishing that:

(1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to reveal the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal."

With reference to DR 7-102(A)(3), the Committee is unaware of any law that places an affirmative obligation upon criminal defense counsel to disclose his client's criminal record. Under DR 7-102(A)(4), a lawyer should not permit his client to falsely state to the court that the client has no prior convictions. Under DR 7-102(A)(5), a lawyer could not himself falsely state to the court that the client had no priors. DR 7-102(B)(1), in conjunction with DR 4-101(C)(2), would require a lawyer whose client had falsely stated to the court that there were no priors to call upon his client to rectify such fraud on the court and to do so himself if the client refused. Opinion 75-19.

On the basis of the disciplinary rules and the ethical obligations discussed above, the Committee reaches the following conclusions: (1) When it appears to the lawyer that the court is about to impose sentence based on incomplete or inaccurate information as to the defendant's record of prior convictions, the lawyer has no duty to correct that information, provided that the lawyer or the client had not affirmatively misrepresented to the court that there were no priors. (2) If asked directly by the court whether the client has any prior convictions, the attorney must protect his client's constitutional guarantees. See, e.g., Meehan v. State, 397 So.2d 1214 (Fla. 2d DCA 1981).