Must a criminal defense lawyer who spots a fatal defect in the indictment point it out to the court or prosecutor?

Plain-English summary

The inquiry asked whether a lawyer employed to defend a person charged with a crime, who discovers a fatal and fundamental defect in the indictment, should apprise the trial court or district attorney of the error, or may instead proceed to try the case knowing that a conviction would be reversed, gaining the accused additional time.

The Committee called this a close question and a majority concluded there is nothing unethical in proceeding without disclosing the defect. It reasoned that there is no obligation on a defense lawyer to assist the State in convicting his client, and that the obligation to prepare indictments properly and to discover any defects in them rests on the prosecuting attorney. Requiring defense counsel to point out defects in an indictment is not consistent with the lawyer's duty to represent his client faithfully as required by Canon 5. The vote was 6-4.

Currency note

This opinion was issued in 1956, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. 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 Treat this page as historical context, not current guidance.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: Did the opinion require defense counsel to disclose a fatal indictment defect?

A: No. By a 6-4 vote the Committee held there was nothing unethical in not calling the court's or prosecutor's attention to it.

Q: On whom did the Committee place the burden of catching indictment defects?

A: On the prosecuting attorney, who has the obligation to prepare indictments properly and to discover any defects after they are filed.

Q: How did the duty to the client figure in?

A: The Committee reasoned that making the defense point out the defect would be inconsistent with the lawyer's Canon 5 duty to represent his client faithfully, and that there is no obligation to help the State convict the client.

Background and rules framework

The opinion interprets former Texas Canon 5 (the duty to represent the client faithfully, and the prosecutor's duty in public prosecution) and Canon 19, the Canons of Ethics of the State Bar of Texas. The modern analogs are ABA Model Rule 3.3 (candor toward the tribunal) and Model Rule 1.3 (diligence).

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal), as the modern analog
• MR 1.3 (diligence), as the modern analog
• Texas Canon 5 (faithful representation of the client)
• Texas Canon 19

See also

• TX Ethics Op. 137: A Prosecutor and a Represented Defendant
• TX Ethics Op. 143: Prosecutor Pressing a Civil Suit

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-131/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_131.pdf

Original opinion text

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

QUESTION PRESENTED

If a lawyer, employed to defend one charged with crime, discovers a fatal and fundamental defect in the indictment, then should such attorney apprise the trial court or district attorney of such error, or should he proceed to try the case knowing that in event of conviction a reversal will follow, thereby giving the accused much additional time?

18 Baylor L. Rev. 248 (1966)

DEFENSE OF THOSE ACCUSED OF CRIME
An attorney representing the defendant in a criminal case is not required to call attention to a fatal defect in his client's indictment.

Canons 5, 19.

This is a close question. However, a majority of the members of the committee are of the opinion that there is nothing unethical in such conduct. There is no obligation on the part of an attorney to assist the State in convicting his client. The obligation is on the prosecuting attorney to prepare indictments properly and to discover any defects which may exist in them after they are prepared and filed. To require the attorney for the defense to point out defects in an indictment is not consistent with the attorney's duty to represent his client faithfully as required by Canon 5 of the Canons of Ethics of the State Bar of Texas. (6-4)

Tex. Comm. On Professional Ethics, Op. 131 (1956)