My criminal client was released from prison to a residential drug program and then left it. Do I have to tell the court?

Plain-English summary

The inquiring attorney represented a defendant in a criminal matter in which the defendant was sentenced to prison. A judge later released the defendant on the condition that he participate in a residential drug treatment program. The attorney was afterward advised that the defendant had left the program, and asked whether he had a duty to bring that information to the court's attention.

The opinion resolves the inquiry under Rule 1.6 (confidentiality) and Rule 3.3 (candor toward the tribunal). As to Rule 1.6, the information is protected from disclosure because it directly relates to the representation of the defendant; absent an exception under Rule 1.6(b), the attorney may not disclose it unless the defendant consents after consultation. The opinion finds no Rule 1.6(b) exception on these facts.

As to Rule 3.3, the Panel notes that paragraph (a)(2) requires a lawyer to disclose material facts to a tribunal when necessary to avoid assisting a client's criminal or fraudulent act, and that Rule 3.3(b) makes those duties continue to the conclusion of the proceeding, even if compliance requires disclosing information otherwise protected by Rule 1.6. On these facts, however, the Panel opines the attorney has no duty to disclose, because he was apprised that the defendant left the program after the conclusion of the proceeding. Because the candor duties do not extend past the proceeding's conclusion, Rule 3.3 does not mandate disclosure.

In practice

Under this opinion, the timing of when the lawyer learns the adverse information is dispositive. The opinion frames the Rule 3.3 disclosure duty as ending at the conclusion of the proceeding; because the attorney learned of the defendant's departure from the program only after the proceeding had concluded, the opinion concludes Rule 3.3 imposes no duty to disclose, and Rule 1.6 continues to protect the information.

Common questions

Q: Is information that a client left a court-ordered program confidential?

A: Yes. The opinion applies Rule 1.6(a), which protects information relating to the representation, and finds no Rule 1.6(b) exception on these facts, so the attorney may not disclose it without the client's consent.

Q: Doesn't the duty of candor to the court override confidentiality?

A: The opinion recognizes that Rule 3.3(b) can require disclosure even of Rule 1.6-protected information, but only while the duty is in force -- that is, to the conclusion of the proceeding.

Q: Why did the Panel find no duty to disclose here?

A: Because the attorney learned that the defendant left the program after the conclusion of the proceeding, so the Rule 3.3 duty, which continues only to that point, did not require disclosure.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 1.6 (confidentiality of information) and 3.3 (candor toward the tribunal), analogs of the corresponding Model Rules. Rule 1.6(a) bars revealing information relating to the representation absent client consent or a listed exception; Rule 3.3(a)(2) requires disclosing material facts to a tribunal when necessary to avoid assisting a client's crime or fraud, and Rule 3.3(b) provides that those duties continue to the conclusion of the proceeding and apply even when compliance requires disclosing information protected by Rule 1.6.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / RI RPC 1.6 (confidentiality of information)
• MR 3.3 / RI RPC 3.3 (candor toward the tribunal; duties continue to the conclusion of the proceeding)

See also

• RI EAP Opinion 93-55: reporting an escrow lawyer's Rule 1.15(b) delay under 8.3

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2093-56.pdf

Original opinion text

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

(FINAL)
ETHICS ADVISORY PANEL
OPINION #93-56, REQUEST #382
Issued August 25, 1993

The inquiring attorney represented a defendant in a criminal matter in which the defendant was sentenced to prison. A judge later released the defendant from prison on the condition that he participate in a residential drug treatment program. Subsequently, the inquiring attorney was advised that the defendant left the program. The attorney inquires as to whether he/she has a duty to bring this information to the court's attention.

The resolution of this inquiry involves both Rule 1.6 and Rule 3.3 of the Rules of Professional Conduct which provide in pertinent part as follows:

Rule 1.6. Confidentiality of Information. - (a) A lawyer shall not reveal information relating to representation of a client unless, the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

(b) A lawyer may, but is not obligated to, reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

Rule 3.3 Candor Toward the Tribunal. - (a) A lawyer shall not knowingly:

(1) make a false statement of material fact of 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 the tribunal legal authority in the controlling 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.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

With respect to the applicability of Rule 1.6, the information is protected from disclosure because it directly relates to the representation of defendant. In the absence of an exception under Rule 1.6(b), the attorney may not disclose said information unless defendant gives consent after consultation.

Pursuant to Rule 3.3, the use of the word "shall" in paragraph (a)(2) requires disclosure by the lawyer to the tribunal of material facts when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. Further, Rule 3.3(b) mandates that the duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

On the facts as presented, the Panel is of the opinion that the attorney has no duty to disclose the information to the Court. As stated above, the duties delineated in Rule 1.6(a) continue to the conclusion of the proceeding. Here, the attorney was apprised that defendant left the program after the conclusion of the proceeding. Accordingly, the provisions of Rule 3.3 do not mandate disclosure by the attorney.