Does a criminal defense lawyer have to volunteer information to the court (a guilty plea, or a sentencing hearing that was never scheduled) when neither the lawyer nor the client was asked and the client did not lie?

Plain-English summary

The committee addressed two situations under the duty of candor to the tribunal (Rule 16-303) and the duty of truthfulness in statements to others (Rule 16-401). In the first, at a probation revocation hearing arising from the client's DWI arrest, the judge asked the client whether she had been driving and she said she had not; the judge then asked the arresting officer the disposition of the municipal-court DWI charge and the officer said he did not know. The defense attorney knew the client had pled guilty to the DWI charge, though the client had previously maintained to the attorney that she was not driving. The questions were whether the attorney had a duty to disclose the disposition and whether the attorney had to investigate further whether the client was actually driving.

The committee concluded that under both Rule 16-303 and Rule 16-401 the attorney is prohibited from making a false statement of material fact and from failing to disclose a material fact when disclosure is necessary to avoid assisting a client's criminal or fraudulent act (unless disclosure is prohibited by Rule 16-106). On these facts, neither the attorney nor the client was asked the disposition and neither concealed it; if the disposition was material, the court could have recessed, directed the prosecutor to report, or questioned the attorney or client directly, and did none of those. The committee also observed that a guilty plea to a misdemeanor does not establish that the client was driving, citing Judge Weinstein's treatise for the point that it is common to plead guilty to misdemeanors while maintaining innocence. It concluded the attorney had no duty to volunteer the disposition and no duty under either rule to investigate the client's statements, because it was reasonable to believe the client pled for reasons other than driving.

In the second situation, the client had been found guilty or pled guilty and sentencing was set for a later date, but after an extended period, perhaps months, no notice of a sentencing hearing arrived. The committee concluded the attorney had no duty to alert the court that the case had fallen through the cracks; indeed, it observed that in some situations, such as a failure to timely prosecute, alerting the court or prosecutor might constitute malpractice, citing State v. Kilpatrick for the proposition that a defendant has no duty to expedite the indictment against him. A duty to notify would arise only if the client requested or desired a speedy conclusion, depending on the particular facts and the client's wishes rather than a general ethical duty to the court or opposing counsel.

Currency note

This opinion was issued in 1990, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rules 16-303, 16-401, and 16-106). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). 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 volunteer to the court a guilty plea or disposition no one asked about?

A: The committee concluded the attorney had no duty to volunteer the disposition of the municipal-court proceeding where neither the attorney nor the client was asked and neither attempted to conceal it.

Q: Does the lawyer have to investigate whether the client lied about not driving?

A: No. The committee concluded the attorney has no duty under Rule 16-303 or Rule 16-401 to investigate the client's statements, because it was reasonable to believe the client pled to the misdemeanor for reasons other than that she was driving.

Q: Must a lawyer tell the court when a sentencing hearing was never scheduled?

A: The committee concluded there is no such duty, and noted that in some situations, such as a failure to timely prosecute, alerting the court or prosecutor might constitute malpractice.

Q: When would a duty to notify the court arise?

A: The committee concluded a duty to notify would exist if the client requested or desired a speedy conclusion to the case, depending on the particular facts and the client's wishes rather than a general ethical duty to the court.

Background and rules framework

The opinion interpreted the duty of candor to the tribunal (Rule 16-303, corresponding to Model Rule 3.3) and the duty of truthfulness in statements to others (Rule 16-401, corresponding to Model Rule 4.1), read together with the confidentiality limit in Rule 16-106 (Model Rule 1.6). The committee framed both rules as prohibitions on affirmative false statements and on withholding a material fact where disclosure is needed to avoid assisting a client's crime or fraud, and distinguished that from any general duty to volunteer information or to investigate a client.

Citations and references

Rules of Professional Conduct:

• Rule 16-303 (candor toward the tribunal); Rule 16-401 (truthfulness in statements to others); Rule 16-106 (confidentiality)

Cases:

• State v. Kilpatrick, 104 N.M. 441, 722 P.2d 692 (Ct. App. 1986): a defendant has no duty to expedite the indictment against him

Other authorities cited:

• 4 J. Weinstein, Weinstein's Evidence (on the limited probative value of misdemeanor pleas)

See also

• NM Ethics Op. 1990-1: Municipal Attorney - Conflict of Interest
• NM Ethics Op. 1988-9: Mandatory Disclosure When the Lawyer Was Made to Mislead a Third Party

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1990-92/1990-2.pdf

Original opinion text

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

Advisory Opinion 1990-2
ATTORNEY'S ETHICAL DUTY OF CANDOR TO THE TRIBUNAL
AND DUTY OF TRUTHFULNESS IN STATEMENTS TO OTHERS
Two similar situations have given rise to a question as to the attorney's ethical duty of candor to the tribunal (SCRA 16303) and duty of truthfulness in statements to other (SCRA 16-401).
SITUATION ONE: At a probation revocation hearing due to a client's arrest for driving while under the influence (DWI), the
client was asked by the judge whether she had been driving. She stated to the Court that she had not been driving.
Later, the judge asked the arresting officer the disposition of the DWI charge which was filed in the municipal court; the
officer told the Court that he did not know the disposition. The defense attorney was aware that his client had, in fact, pled
guilty to the DWI charge.
Previously, the defense attorney had questioned his client regarding her actions and she had maintained to him that she
was not driving the vehicle.
ISSUE: Whether the attorney had a duty to disclose to the Court the disposition of the DWI charge and whether the
attorney has a duty to inquire or investigate further as to whether his client was, in fact, driving the motor vehicle?
OPINION: Under both SCRA 16-303 and 16-401, the attorney is prohibited from making a false statement of a material
fact or law to a third person or in failing to disclose a material fact when disclosure is necessary to avoid assisting a
criminal or fraudulent act by a client (unless disclosure is prohibited by SCRA 16-106).
In the factual description described above, neither the attorney nor his client were asked the disposition of the municipal
court proceeding. Neither the attorney nor the client attempted to conceal the disposition. If the outcome of the municipal
court proceeding was material, the Court could have recessed to ascertain the disposition, could have directed the
prosecutor to report on the outcome or could even have directly questioned the defense attorney or the client. The Court
did none of those things.
Furthermore, facts could exist that explain the plea of guilty to the DWI charge when in fact, the client had not actually
been driving. In the factual situation given, the attorney did not know that his client was lying and did not assist his client
in lying; it is possible that his client was not lying. Indeed, Judge Weinstein notes in his treatise on evidence that
motivation to defend misdemeanor cases may be so lacking that he does not believe misdemeanor pleas should be
admissible to prove facts essential to sustain the judgment. 4 J. Weinstein, Weinstein's Evidence ¶ 803(22)[01] at 803-354
to -55. Thus, it is quite common to plead guilty to misdemeanor charges and yet maintain innocence.
Although an attorney might want to explore the events more fully with his client, particularly if additional hearings are to be
held, the attorney has no duty under either SCRA 16-303 or 16401 to investigate his client's statements. Because it is
reasonable under these facts for the attorney to believe that his client pleaded to the misdemeanor charge for reasons
other than that she was driving, we do not believe there was a special duty to investigate here.
Therefore, it is the opinion of the State Bar's Committee for Advisory opinions that under the facts outlined above, the
attorney has no duty to volunteer to the tribunal the disposition of the municipal court proceeding and has no duty to
investigate his client's statements.
SITUATION TWO: An attorney is representing a client in Metropolitan Court. The client has either pled guilty or has been
tried and found guilty; sentencing was to be at a later date. Even though an extended period of time has elapsed,
perhaps even months, the attorney has received no notice of a sentencing hearing.
ISSUE: Whether the attorney has a duty under SCRA 16-303, 16401 or other ethical canon to alert the Court to the failure
to schedule the hearing?

OPINION: It is the opinion of the State Bar's Committee for Advisory Opinions that under the facts outlined above, the
attorney has no duty to notify the Court that the case has "fallen through the cracks." In fact, under some situations such
as a failure to timely prosecute, the attorney might commit malpractice if he did alert the Court or prosecutor. The Court of
appeals has held that a defendant has no duty to expedite the indictment against him. State v. Kilpatrick, 104 N.M. 441,
722 P.2d 692 (Ct. App. 1986). A duty to notify the Court would exist if the client requested or desired a speedy
conclusion to his case; however, this would depend on the particular facts and the wishes of the client, not on a general
ethical duty to the Court or opposing attorney.