When a criminal client is charged under an alias hiding a prior record, must defense counsel disclose it, and what happens if the client testifies falsely?

Plain-English summary

Attorney A represented Defendant D in a criminal proceeding and learned in a confidential communication that D had been charged under an alias; revealing D's real identity would expose a prior record affecting sentencing and possibly leading to other charges, and it would be in D's interest to testify. The inquiry asked whether A had a duty to disclose the alias, whether he could have D sworn under the alias, and whether A had to withdraw if D denied a record when asked by the district attorney or if the judge directly asked A to disclose the record.

The opinion concluded that, before any trial court proceedings, A has no affirmative duty to disclose D's true name or record; indeed his duty to the client prohibits disclosing this confidential information (Rule 4). In the trial court, A also owes a duty to the tribunal: he may not participate in presenting perjured testimony (Rule 7.2(a)(4), (5), (6), (8)) or in perpetrating a fraud on the tribunal (Rule 7.2(b)(1)), and may not sit idly while the defendant testifies falsely. In response to a specific, direct question from the court, counsel may not misrepresent the defendant's record but is under no ethical obligation to respond. Anticipating these events, A must, before trial, ask D to agree to testify truthfully about all matters, including his name and record, if he testifies at all; if D refuses, A must terminate the representation and, if formally in the case, undertake to withdraw before trial under the tribunal's rules (Rule 7.2 and comment). If D agrees but then testifies falsely on a material matter, A must call on D to correct it, and if D refuses, A must undertake to withdraw (Rule 7.2(b)(1) and comment).

Currency note

This opinion was issued in 1988, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct (the bar's editor's note also points to Rule 3.3 of the Revised Rules for additional considerations). The provisions it applies (Rule 4 on confidentiality and Rule 7.2 on candor to the tribunal and withdrawal) have since been renumbered and revised (the corresponding Model Rules are 1.6, 3.3, and 1.16). 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 Treat this page as historical context, not current guidance.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 disclose the client's alias before trial?

A: No. The opinion concluded counsel has no duty to disclose the true name or record before trial and must keep it confidential under Rule 4.

Q: Can counsel have the client sworn under the alias or let him deny a record?

A: No. The opinion concluded counsel may not participate in perjured testimony or a fraud on the tribunal and may not sit by while the defendant testifies falsely.

Q: If the judge directly asks counsel about the record, must counsel answer?

A: The opinion concluded counsel may not misrepresent the record but is under no ethical obligation to respond to the court's direct question.

Q: What must counsel do before and during trial?

A: The opinion concluded counsel must obtain the client's agreement to testify truthfully or withdraw before trial, and if the client testifies falsely must call on him to correct it or move to withdraw.

Background and rules framework

The opinion balanced North Carolina Rule 4, the duty of confidentiality (corresponding to Model Rule 1.6), against Rule 7.2's duties of candor to the tribunal, including the bars on perjured testimony and fraud on the court (corresponding to Model Rule 3.3), with withdrawal as the remedy when the duties collide (corresponding to Model Rule 1.16). The analysis turned on the shift from the pretrial phase, where confidentiality controls, to the trial phase, where the duty to the tribunal limits what counsel may allow.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 4 (confidentiality)
• North Carolina Rule 7.2(a) (refusing to present perjured testimony)
• North Carolina Rule 7.2(b)(1) (no fraud on the tribunal)
• MR 1.6 (confidentiality); MR 3.3 (candor toward the tribunal); MR 1.16 (declining or terminating representation)

See also

• NC Ethics Op. RPC 52: private employment of appointed counsel
• NC Ethics Op. RPC 44: attorney's obligation to follow closing instructions

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-33/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 33 (Revised). See Rule 3.3 of the Revised Rules for additional considerations.

Inquiry:

Attorney A represents Defendant D in a criminal proceeding. In a confidential communication with D, Attorney A discovers that D has been charged under an alias. If D's real identity were known, it would reveal a prior criminal record which could have an impact on sentencing and possibly result in other charges. In this particular case, it would be in the best interest of D to testify in his own behalf.

Does Attorney A have an affirmative duty to disclose the alias? May he have D sworn under the alias? When the district attorney asks the defendant if he has a prior criminal record, must Attorney A withdraw if D denies any record? If asked by the judge to disclose D's prior record, which cannot be accomplished without revealing the alias, must Attorney A withdraw?

Opinion:

Prior to any trial court proceedings, Attorney A has no affirmative duty to disclose the Defendant's true name or his criminal record. Indeed, at that point in his representation, Attorney A's duty to his client prohibits his disclosing this confidential information. Rule 4.

In the trial court, however, Attorney A also has a duty to the tribunal. He may not participate in the presentation of perjured testimony, Rule 7.2(a) (4), (5), (6) and (8), nor in the perpetration of a fraud upon the tribunal. Rule 7.2(b) (1). Obviously, trial court events may give rise to a conflict between this duty to deal honestly with the court, and the duty to deal confidentially with the client. Counsel may not sit idly by while a defendant testifies falsely. Rule 7.2(b) (1). And in response to a specific and direct question to counsel by the court, counsel may not misrepresent the defendant's criminal record but is under no ethical obligation to respond.

Prior to trial, Attorney A must anticipate these possible trial events. He must request the Defendant to agree that he will testify truthfully about all matters, including his name and criminal record, if he testifies at all. If the Defendant refuses this request, Attorney A must terminate his representation. If he has formally entered the case, he must undertake to withdraw, prior to trial, in accord with the rules of the tribunal. See Rule 7.2 and comment.

If the Defendant agrees to these requests but, during the trial, testifies falsely with respect to a material matter, including his name and criminal record, Attorney A must call upon the Defendant to correct the false testimony. If the Defendant refuses, Attorney A must undertake to withdraw from the case in accord with the rules of the tribunal. See Rule 7.2(b) (1) and comment.