Must an appointed criminal defense lawyer tell the court that the client lied about being indigent, or later became able to afford a lawyer?

Plain-English summary

An attorney was appointed to represent a defendant who had sworn under oath that he was indigent and could not afford an attorney. The attorney later learned the defendant was not in fact indigent and could have paid for retained counsel, and that he was not indigent when he signed the request for appointment. A second scenario added that the defendant was unemployed when counsel was appointed but obtained employment during the case that would let him hire retained counsel. The question was whether the attorney could inform the court of the circumstance in each case.

The Committee concluded that in both cases the answer was clear. Rule 3.03(a)(2) requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act. Rule 1.05(f) requires a lawyer to reveal confidential information when required to do so by Rule 3.03(a)(2). Read together, the Committee concluded, the rules required the attorney to disclose the client's true financial circumstances to the court.

Currency note

This opinion was issued in 1991, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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 Treat this page as historical context, not current guidance.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 appointed counsel tell the court a client lied about being indigent?

A: The Committee concluded yes. Rule 3.03(a)(2) requires disclosing a fact to a tribunal when necessary to avoid assisting a criminal or fraudulent act, and Rule 1.05(f) requires revealing the confidential information when 3.03(a)(2) applies.

Q: What if the client becomes able to afford a lawyer only after appointment?

A: The Committee treated that as the same answer. In both the never-indigent and the later-employed scenarios, the duty to disclose under Rules 3.03(a)(2) and 1.05(f) applied.

Q: Does confidentiality protect the client's false indigency claim?

A: Per the opinion, no. Rule 1.05(f) requires revealing confidential information when Rule 3.03(a)(2) requires disclosure to avoid assisting a criminal or fraudulent act.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 3.03(a)(2) (candor toward the tribunal; ABA Model Rule 3.3) together with Rule 1.05(f) (confidentiality of information; ABA Model Rule 1.6), which subordinates the confidentiality duty to the mandatory-disclosure duty in defined circumstances. The analysis turns on the rules' command to disclose facts needed to avoid assisting a client's criminal or fraudulent act before a tribunal.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal); MR 1.6 (confidentiality of information)
• Texas Disciplinary Rule 3.03(a)(2); Rule 1.05(f)

See also

• TX Ethics Op. 480: Duty to Disclose a Concealed Trust to the Bankruptcy Court
• TX Ethics Op. 482: Hostile Co-Defendant Confidences and Withdrawal From a Joint Defense

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-473/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_473.pdf

Original opinion text

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

QUESTION PRESENTED

What is the duty of appointed counsel to disclose the fraud of an allegedly indigent client?

STATEMENT OF FACTS

An attorney is appointed to represent the defendant in a criminal case after the defendant has signed a sworn statement under oath that he is indigent and has insufficient funds to hire an attorney. In talking with the defendant, the attorney discovers the defendant is not in fact indigent and could pay for retained counsel. The attorney also learns the defendant was not indigent when he signed the request for appointed counsel. May the attorney inform the court of this circumstance?
Same basic fact situation as above, except that the defendant is unemployed at the time counsel is appointed for him, and subsequently during the pendency of the criminal case obtains employment which would enable him to employ retained counsel. May the attorney inform the court of this situation?

DISCUSSION

In both cases the answer is clear. Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act and Section 1.05(f) requires a lawyer to reveal confidential information when required to do so by Rule 3.03(a)(2).

CONCLUSION

In both cases the answer is clear. Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act and Section 1.05(f) requires a lawyer to reveal confidential information when required to do so by Rule 3.03(a)(2).

Tex. Comm. On Professional Ethics, Op. 473 (1991)