What must a Florida criminal defense lawyer do when a client is proceeding under a false name?

Plain-English summary

This opinion, approved by The Florida Bar Board of Governors on May 29, 2009, was issued after the committee withdrew the original Opinion 90-6 at its March 16, 2007 meeting. The original opinion had concluded that a criminal defense attorney who learned a client was proceeding under a false name could not inform the court of that fact because of the attorney-client privilege and the client's constitutional rights, though the attorney could not assist a fraud on the court. The Board issued this reconsideration to provide current guidance.

The Board addressed two scenarios. If the lawyer learns at the initial consultation, before accepting the representation, that a criminal defendant is being charged and proceeding under a false name, the lawyer must decline to represent the client unless the prospective client agrees to disclose to the court that he or she is proceeding under a false name. If the lawyer learns of the false name after representation has begun, the lawyer should tell the client the lawyer cannot assist in misleading the court about the client's identity and should try to persuade the client to disclose; if the client refuses and insists on maintaining the false name, the lawyer must move to withdraw and must counsel the client not to commit perjury. If the court declines to permit withdrawal, the lawyer must continue, and may not inform the court of the false name except when the client affirmatively lies to the court about his or her true name.

The Board added that merely filing pleadings under the false name or responding to the alias at a docket sounding is not a misrepresentation, but the lawyer cannot let the client lie, so if asked the client must give a true name or invoke a privilege. Where the client has been charged as "John Doe" or "Jane Doe" and is openly refusing to disclose identity, or where the file shows the client is known by multiple names, no remedial measures are required.

In practice

The opinion holds that, under the Florida rules as they stood at the time, the lawyer's obligations depend on when the false name is discovered. Before accepting a case, conduct that matches this fact pattern requires declining the representation unless the prospective client agrees to disclose the false name to the court. After the representation begins, the opinion directs the lawyer to counsel against perjury and move to withdraw if the client insists on the false name, while limiting any disclosure of the false name to the situation in which the client affirmatively lies to the court about identity. Per the opinion, the analysis turns on the distinction between passively proceeding under an alias, which it treats as not a misrepresentation, and an affirmative lie to the court, which triggers the duty of candor under Rule 4-3.3.

Common questions

Q: What if the lawyer learns of the false name before taking the case?

A: The opinion concludes the lawyer must decline the representation unless the prospective client agrees to disclose to the court that he or she is proceeding under a false name.

Q: What if the lawyer learns of it after representation has begun?

A: The opinion directs the lawyer to tell the client he cannot assist in misleading the court, try to persuade the client to disclose, and, if the client refuses and insists on keeping the false name, move to withdraw and counsel the client not to commit perjury.

Q: Can the lawyer ever tell the court the client's true name?

A: Only when the client affirmatively lies to the court about his or her name. The opinion states that merely filing under or responding to an alias is not a misrepresentation, and that if the client is charged as "John Doe" or the file shows multiple names, no remedial measures are required.

Background and rules framework

The opinion applies Rule 4-3.3 (candor toward the tribunal, including the duty not to make a false statement of material fact and not to fail to disclose a material fact when needed to avoid assisting a crime or fraud), together with Rules 4-1.2(d) (no assisting client crime or fraud), 4-1.4, 4-1.6(b), 4-1.16(a), 4-3.4(c), 4-4.1, and 4-8.4 of the Rules Regulating The Florida Bar (Model Rules 3.3, 1.2(d), 1.4, 1.6, 1.16, 3.4, 4.1, and 8.4). The Board's analysis distinguishes passively proceeding under an alias from an affirmative misrepresentation to the court.

Citations and references

Rules of Professional Conduct:

• Rule 4-3.3, Rules Regulating The Florida Bar (candor toward the tribunal) [Model Rule 3.3]
• Rule 4-1.2(d) (no assisting client crime or fraud) [Model Rule 1.2(d)]
• Rules 4-1.4, 4-1.6(b), 4-1.16(a), 4-3.4(c), 4-4.1, 4-8.4 [Model Rules 1.4, 1.6, 1.16, 3.4, 4.1, 8.4]

Other opinions cited:

• Florida Opinion 90-6 (original; withdrawn by this reconsideration).

See also

• FL Bar Ethics Op. 04-1: Client Perjury, Disclosure, and Withdrawal
• FL Bar Ethics Op. 12-1: Plea Waivers and Prosecutorial Misconduct
• FL Bar Ethics Op. 07-1: A Client's Wrongfully Obtained Documents

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-90-6-rec/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-90-6-Rec.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 90-6 (Reconsideration)
May 29, 2009
Advisory ethics opinions are not binding.
A lawyer who learns that a criminal defendant is proceeding under a false name before the lawyer agrees to represent the criminal defendant who cannot persuade the client to correct the name must decline representation. A lawyer who learns that a criminal defendant who is an existing client is proceeding under a false name must withdraw from representation and must admonish the client not to commit perjury, but cannot disclose the client's use of the false name to the court unless the client makes an affirmative misrepresentation to the court regarding the name.
Note: This opinion was approved by The Florida Bar Board of Governors on May 29, 2009.
RPC: 4-1.2(d), 4-1.4, 4-1.6(b), 4-1.16(a), 4-3.3, 4-3.4(c), 4-4.1, 4-8.4(d)
Opinions: 90-6 (withdrawn)
In former Florida Ethics Opinion 90-6, a criminal defense attorney inquired about an attorney's obligation upon discovering that a client who is a defendant in a pending criminal proceeding gave an alias when arrested, and proceedings have been brought under the alias. The attorney asked whether this information must be revealed to the court and, if so, whether the attorney must inform the court of the client's true identity. Former Florida Ethics Opinion 90-6 concluded that a criminal defense attorney who learns that his or her client is proceeding under a false name may not inform the court of this fact due to the attorney-client privilege, the client's constitutional right to effective assistance of counsel, or the client's constitutional privilege against self-incrimination, but that the attorney may not assist the client in perpetrating or furthering a crime or a fraud on the court. The opinion further concluded that if the court requests information about the client's identity or record, "the client and defense counsel may answer truthfully (if the client, after consultation with counsel, decides that doing so is in his or her best interests) or may decline to answer on the basis of any applicable privilege."
The Committee withdrew Florida Ethics Opinion 90-6 at its March 16, 2007 meeting. In order to provide guidance to Florida Bar members on this issue, the Board of Governors issues this opinion.
Rule of Professional Conduct 4-3.3(a) states in pertinent part:
(a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client[.]
Additionally, Rule 4-1.2(d) prohibits a lawyer from assisting a client in criminal or fraudulent conduct, while Rule 4-8.4(c) prohibits a lawyer from "dishonesty, fraud, deceit, or misrepresentation."
The mere act of filing pleadings under the false name used by the client or responding to the alias when called at a docket sounding does not involve misrepresentation to the court. However, the lawyer cannot permit the client to lie and therefore, if asked, the client must give his or her true name or invoke a privilege in refusing to respond.
The Board will address the following scenarios: 1) the lawyer learns in the initial consultation before the lawyer accepts representation that a criminal defendant is being charged and proceeding under a false name; and 2) the lawyer learns after representation begins that a criminal defendant client is being charged and proceeding under a false name.
If the lawyer learns that the client has given a false name at the outset of the representation, before the lawyer has accepted representation of the criminal defendant in the case, the lawyer must decline to represent the client on the basis of the false name unless the prospective client agrees to disclose to the court that the client is proceeding under a false name. See Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3 (a)(2) and (b), 4-3.4(c), 4-4.1, and 4-8.4, Rules of Professional Conduct.
If the lawyer learns of the false name after representation has begun, the lawyer should inform the client that the lawyer cannot assist the client in misleading the court regarding the client's identity, and the lawyer should attempt to persuade the client to disclose that the client is proceeding under a false name. Rules 4-1.2(d), 4-1.4, 4-1.6(b)(1), 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct. If the client refuses to disclose the information and insists that the client will maintain the false name throughout the case, the lawyer must move to withdraw from the client's representation. Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct. The lawyer must counsel the client not to commit perjury. Rules 4-1.2(d), 4-1.14, 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct.
If the court declines to permit withdrawal, the lawyer must continue the representation. Rule 4-1.16(c), Rules of Professional Conduct. The lawyer may not inform the court of the false name except when the client affirmatively lies to the court concerning his or her true name.
All of the above scenarios presuppose that there is nothing in the court file to indicate that the client has been charged and is proceeding under a false name. If the client has been charged as a "John Doe" or "Jane Doe" and clearly is openly refusing to disclose his or her identity, there is no misrepresentation to the court and the above rules are not applicable. See Rule 4-3.4(c). Under this circumstance, the lawyer need not specifically disclose to the court that the client is proceeding under a false name. Rule 4-3.3, Rules of Professional Conduct. Additionally, if the court file clearly indicates that the client is known by multiple names, then the court is on notice that the client may be proceeding under a false name and no remedial measures by the criminal defense lawyer are required.