Can a prosecutor and defense lawyer let a defendant tell the judge under oath there is no plea agreement when a plea deal was in fact negotiated?

Plain-English summary

A prosecutor and defense lawyer negotiated a plea: the defendant would plead guilty to a lesser included offense and an unrelated charge would be dismissed. The plea transcript did not mention the charge to be dismissed and did not state that the plea was part of an arrangement. When the plea was entered, the defendant testified under oath that there was no plea agreement, and neither lawyer told the judge about the negotiation. The first question was whether all counsel's conduct complied with the Rules.

The opinion concluded that it did not. Rule 1.2(c) prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation, and on these facts the plea was plainly the product of a negotiated arrangement, so the defendant's untruthful answers and the lawyer's signature on the transcript misrepresented the arrangement in violation of Rule 1.2(c). The opinion added that Rules 7.2(a)(5) and (8) prohibit a lawyer from knowingly using perjured testimony or false evidence and from counseling or assisting a client in conduct the lawyer knows to be fraudulent. The second scenario, where the prosecutor agreed to tell the judge the state did not oppose probation but the transcript and the defendant again denied any agreement, was resolved the same way.

The third scenario involved plea negotiations conducted by a lay administrative assistant of the district attorney who had not discussed the case with the DA or assigned ADA, but where the DA knew the assistant did this routinely and had not disapproved. The opinion concluded that even if the DA did not directly participate, he is professionally responsible to the extent he knowingly ratified the practice by acquiescence. Rule 3.3(c)(1) makes a lawyer responsible for a supervised nonlawyer's conduct that would violate the Rules if done by a lawyer where the supervising lawyer orders or, with knowledge of specific conduct, ratifies it; because the practice was routine and the DA was aware, the conduct was inconsistent with Rule 3.3(c)(1).

Currency note

This opinion was issued in 1993, before the North Carolina State Bar's adoption of the 2003 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 Treat this page as historical context, not current guidance.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: Can counsel let a defendant deny a plea agreement to the judge when one exists?

A: No. The opinion held that letting the defendant falsely deny the agreement and signing a transcript that conceals it misrepresents the arrangement in violation of Rule 1.2(c).

Q: Which rules does hiding the plea deal implicate?

A: The opinion cited Rule 1.2(c) on dishonesty and Rules 7.2(a)(5) and (8), which bar knowingly using perjured testimony or false evidence and assisting a client in conduct known to be fraudulent.

Q: Is the district attorney responsible when a nonlawyer assistant negotiates the plea?

A: Yes, where he ratifies it. The opinion held that under Rule 3.3(c)(1) the DA is responsible for the routine nonlawyer plea-negotiation practice he knowingly allowed, even without participating in the particular case.

Background and rules framework

The opinion applied North Carolina Rule 1.2(c), the dishonesty provision corresponding to Model Rule 8.4(c); Rules 7.2(a)(5) and (8), corresponding to the candor and false-evidence duties of Model Rule 3.3; and Rule 3.3(c)(1), the supervisory-responsibility provision corresponding to Model Rule 5.3 on nonlawyer assistants. It treated the failure to disclose a material plea term, coupled with a sworn denial, as a misrepresentation to the tribunal.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal; false evidence)
• MR 8.4 (dishonesty, fraud, deceit, misrepresentation)
• MR 5.3 (responsibilities regarding nonlawyer assistants)
• North Carolina Rule 1.2(c); Rule 7.2(a)(5), (8); Rule 3.3(c)(1)

See also

• NC Ethics Op. 2003 Formal Op. 5: misrepresentation of a prior record at sentencing
• NC Ethics Op. 2013 Formal Op. 1: release-dismissal agreement offered by a prosecutor
• NC Ethics Op. RPC 159: settlement conditioned on not reporting to a licensing board

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-152/

Original opinion text

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

Inquiry #1:

A prosecutor and defense attorney discuss the circumstances under which a defendant in a pending criminal case will plead guilty. It is tentatively agreed that the defendant will plead guilty to a lesser included offense as to one charge and that another unrelated charge will be dismissed. After discussion with counsel, defendant accepts the plea arrangement.

A transcript of plea is prepared which does not refer to the charge that is to be dismissed. Further, the transcript, as prepared, does not state that the defendant has agreed to plead as part of a plea arrangement.

When the plea is actually entered and accepted by the presiding judge, the defendant, under oath, states that there is no plea agreement. Neither the prosecutor nor defense counsel inform the judge about the earlier plea discussion or that in return for the plea of guilty, the defendant is being allowed to plead guilty to a lesser included offense and that another unrelated charge is to be dismissed as a result of the plea.

Under the above recited factual situation, would the conduct of all counsel be consistent with the Rules of Professional Conduct?

Opinion #1:

No. Rule 1.2(c) of the Rules of Professional Conduct prohibits attorneys from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. From the facts presented, it is clear that the client's guilty plea was the product of a negotiated plea arrangement. The client's untruthful answers to questions relating to the subject plea agreement and the lawyer's signature on the transcript, misrepresent the plea arrangement and thus are in violation of Rule 1.2(c). Additionally, Rules 7.2(a)(5) and (8) prohibit an attorney from knowingly using perjured testimony or false evidence and from counseling or assisting his client in conduct that the lawyer knows to be fraudulent.

Inquiry #2:

Assume a similar factual situation where the prosecutor agrees to tell the judge in open court before sentencing that the state is not opposed to a probationary sentence in return for the defendant's guilty plea, the transcript of plea states that the defendant has not agreed to plead as part of a plea agreement, when the plea is accepted by the trial court, the defendant, under oath, states there is no plea agreement and the judge is again unaware of the plea negotiations.

Opinion #2:

No. See opinion #1.

Inquiry #3:

Assume a similar factual situation where the plea negotiation takes place between a lay administrative assistant of the district attorney and defense counsel. Assume further that the administrative assistant has not discussed the case beforehand with the district attorney or the assistant district attorney assigned to the case, but that the district attorney and his assistants are aware that the lay administrative assistant engages in such practice as a routine matter and that the district attorney has not disapproved of such practice.

Opinion #3:

Even though the district attorney may not directly participate in or become familiar with particular cases in which plea negotiations have been undertaken on his behalf by the administrative assistant, he or she is professionally responsible for the conduct described in the preceding inquiry to the extent that he or she has knowingly ratified the practice by acquiescence. Rule 3.3(c)(1) makes a lawyer professionally responsible for any conduct of a nonlawyer under his or her supervision which would violate the Rules of Professional Conduct if engaged in by a lawyer if the supervising lawyer "orders or, with the knowledge of specific conduct, ratifies the conduct involved...." Since the above described practice is described as being "routine" and the district attorney is aware of the conduct, such conduct would be inconsistent with the requirements of Rule 3.3(c)(1).