If a prosecutor forgets to file the charges a plea deal called for, does the defense lawyer have to point out the oversight?

Plain-English summary

A client charged with a misdemeanor reached a plea agreement under which the misdemeanor would be dismissed and recharged as a felony, with the prosecutor agreeing to a "delay of sentence" that would ultimately result in dismissal of the felony. After the misdemeanor was dismissed, the prosecutor's office, through an apparent oversight, never initiated the felony charges. The client directed the lawyer to do nothing, and the lawyer asked whether there was an obligation to inform the prosecutor of the oversight.

The opinion analyzed the question under MRPC 1.2(c) and 3.3(a), framing the issue as whether the client's conduct was criminal or fraudulent and, if so, whether the lawyer's silence would assist it. The opinion concluded the client was plainly not engaging in any criminal or fraudulent act by refraining from alerting the prosecutor's office to the oversight, so neither MRPC 1.2(c) nor 3.3(a) imposed a duty to act. The duty to speak under MRPC 3.3(a)(2) arises only when necessary to prevent or rectify the consequences of a fraudulent or criminal act, which was absent here.

The opinion then considered MRPC 8.4(c). It observed that opinions finding conduct prejudicial to the administration of justice involved affirmative misrepresentations to a tribunal (RI-55), failure to disclose the false nature of tendered evidence (RI-56), or agreeing to withhold information about a lawyer's own misconduct (RI-88). Even assuming silence could be "conduct" within the rule, the opinion concluded nothing in the commentary or prior opinions suggested that mere silence on these facts amounted to conduct prejudicial to the administration of justice, so the lawyer's failure to alert the prosecutor was not ethical misconduct.

Currency note

This opinion was issued in 1993, before later amendments to the Michigan Rules of Professional Conduct. MRPC 1.2, 3.3, and 8.4 have since been amended, and subsequent rule changes 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 Treat this page as historical context, not current guidance.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 a defense lawyer tell the prosecutor it forgot to file the agreed charges?

A: No. The opinion concluded there is no such duty, because the client's silence about the oversight is not a criminal or fraudulent act that the lawyer would be assisting.

Q: Does the candor rule (MRPC 3.3) require disclosure here?

A: No. The opinion concluded the MRPC 3.3(a)(2) duty to speak arises only when necessary to prevent or rectify a fraudulent or criminal act, which was not present.

Q: Could staying silent count as conduct prejudicial to the administration of justice under MRPC 8.4(c)?

A: The opinion concluded it does not on these facts; prior opinions applying that rule involved affirmative misrepresentation or withholding information about misconduct, not mere silence about an opponent's oversight.

Background and rules framework

The opinion applied Michigan's counseling, candor, and misconduct rules. MRPC 1.2(c) (Model Rule 1.2) bars counseling or assisting conduct the lawyer knows is illegal or fraudulent. MRPC 3.3(a) (Model Rule 3.3) governs candor to a tribunal, including the duty to disclose a material fact when necessary to avoid assisting a client's crime or fraud. MRPC 8.4(c) (in Michigan's numbering, conduct prejudicial to the administration of justice; compare Model Rule 8.4(d)) defines professional misconduct. The opinion distinguished RI-55, RI-56, and RI-88 as cases where affirmative misconduct, not silence, triggered the rule.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / MRPC 1.2(c) (not assisting illegal or fraudulent conduct)
• MR 3.3 / MRPC 3.3(a) (candor toward the tribunal)
• MR 8.4 / MRPC 8.4(c) (conduct prejudicial to the administration of justice)

Other opinions cited:

• Michigan RI-55: disclosure of lawyer status in administrative proceedings
• Michigan RI-56: disclosing evidence altered during discovery
• Michigan RI-88: agreement to withhold information about misconduct

See also

• Mich Ethics Op. RI-56: disclosing evidence altered during discovery
• Mich Ethics Op. RI-88: reporting misconduct and no-grievance settlements
• Mich Ethics Op. RI-13: duty when a client gave false deposition testimony
• Mich Ethics Op. RI-151: duty when a client's filed pleadings are false

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1035&Type=6

Original opinion text

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

RI-165

May 28, 1993

SYLLABUS

A lawyer has no duty to inform the prosecutor's office of its failure to initiate criminal charges against the lawyer's client, even though the initiation of the charges was part of a negotiated plea agreement between the lawyer and the prosecuting attorney.

References: MRPC 1.2(c), 3.3(a), 8.4(c); RI-55, RI-56, RI-88.

TEXT

A lawyer's client was charged with a misdemeanor. As a result of plea negotiations with the prosecuting attorney's office, it was agreed that the misdemeanor case would be dismissed and recharged as a felony. As part of the plea agreement, the prosecuting attorney's office would agree to a "delay of sentence," which would result in the ultimate dismissal of the felony. After the misdemeanor case was dismissed, through an apparent oversight, no felony charges were initiated. The client has directed the lawyer to do nothing regarding notification to the prosecuting attorney's office. The lawyer asks whether an obligation exists to inform the prosecuting attorney's office of the oversight.

MRPC 1.2(c) states:

"A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal 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."

MRPC 3.3(a) states:

"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;

"(3) fail to disclose to a tribunal controlling legal authority in the jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

"(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures."

The issues under both of these rules are whether the client's conduct constitutes a criminal or fraudulent act and, if so, whether the lawyer's silence would constitute assistance in furtherance of such criminal or fraudulent act.

While the Rules impose on a lawyer a duty to speak or act in certain limited circumstances, such as those posed in MRPC 3.3(a)(2), the duty arises only when necessary to prevent or rectify the consequences of a fraudulent or criminal act. In the situation discussed herein, the client is plainly not engaging in any fraudulent or criminal acts in refraining from alerting the prosecutor's office of this apparent oversight. Thus, neither MRPC 1.2(c) nor 3.3(a) would impose a duty to act on the lawyer under these circumstances.

MRPC 8.4(c) states:

"It is professional misconduct for a lawyer to:

"(c) engage in conduct that is prejudicial to the administration of justice."

Opinions regarding conduct prejudicial to the administration of justice under this Rule have related to acts such as affirmative misrepresentations to the tribunal, RI-55; failure to disclose the false nature of tendered evidence, RI-56; or entering into an agreement to withhold information regarding a lawyer's ethical misconduct, RI-88. Even assuming arguendo that silence is "conduct" within the meaning of this Rule, nothing in the commentary to MRPC 8.4 or in any of the stated opinions issued would seem to indicate that mere silence under the facts presented here would amount to conduct prejudicial to the administration of justice.

Thus the lawyer's failure to alert the prosecutor's office does not constitute ethical misconduct.