Does a criminal defense lawyer have to correct a prosecutor's wrong statement in court that the defendant has no prior convictions, when neither the lawyer nor the defendant said anything false?

Plain-English summary

The question (PEC Matter No. 93-5) was whether the duty of candor under Rule 3.03 requires defense counsel in a criminal case to correct mistaken statements by a prosecutor about the defendant's prior convictions, where neither the lawyer nor the defendant made any false statement. In the facts, the defendant did not testify; during the punishment phase the judge asked the prosecutor whether the defendant had prior convictions, the prosecutor mistakenly said police records showed none, and turned to the defendant and asked "Right?" The defendant and counsel said nothing and probation was granted. Defense counsel knew the statement was wrong because the defendant had told him of prior felony convictions, and after trial advised the defendant to answer probation officials truthfully (which the defendant later did).

The Committee framed Rule 3.03 as balancing candor to the court against loyalty to the client and the duty to protect confidential information. It identified the exceptions to confidentiality: Rule 3.03(a)(1) (no knowing false statement of material fact or law), 3.03(a)(2) (no knowing failure to disclose to avoid assisting a criminal or fraudulent act), and 3.03(a)(5) (no knowing offer or use of false evidence). The situation involved none of these: neither the lawyer nor the client made a false statement, and the client committed no fraud or perjury. The Committee reviewed ABA Formal Opinion 287 (1953) (under the Canons, the lawyer's confidentiality duty barred disclosing the client's record, but the lawyer could make no false statement) and ABA Formal Opinion 87-353 (1987) (Model Rule 3.3 made disclosure mandatory when the lawyer's client commits perjury the client will not rectify).

Applying those principles, the Committee concluded that if a judge directly asks defense counsel whether the client has prior convictions, the lawyer may not make a false statement; if that question follows another person's inaccurate statement, the lawyer must correct it, indicate a refusal to corroborate it, or ask to be excused, so the court is alerted to inquire further. Rule 3.03(a)(2) requires disclosure only to avoid assisting a criminal or fraudulent act, so silence absent client fraud or perjury does not require correcting false information supplied by others. The Committee also concluded silence is not the "use" of false evidence under Rule 3.03(a)(5), which (per Comment 13 and the Schuwerk and Sutton treatise) addresses false testimony elicited on cross-examination, where correction is discretionary. Because neither the lawyer nor the client made a false statement and there was no client fraud or perjury, the lawyer may remain silent without violating Rule 3.03 and is therefore prohibited by Rule 1.05 from disclosing the client's prior convictions.

Currency note

This opinion was issued in 1994, 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 2009 amendments to Rule 3.03 and 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 defense counsel correct a prosecutor's wrong statement that the client has no priors?

A: The Committee concluded the lawyer need not correct it and may remain silent, because neither the lawyer nor the client made a false statement and there was no client fraud or perjury.

Q: What if the judge asks defense counsel directly about the client's record?

A: The Committee concluded the lawyer may not lie; the lawyer must correct the inaccurate statement, indicate a refusal to corroborate it, or ask the court to be excused from answering.

Q: Does staying silent count as "using" false evidence under Rule 3.03(a)(5)?

A: The Committee concluded it does not; that provision targets false testimony elicited on cross-examination, where correction is discretionary under Comment 13, not silence about another's mistaken statement.

Q: Can the lawyer volunteer the client's prior convictions to the court?

A: The Committee concluded that because no Rule 3.03 exception applied, Rule 1.05 prohibits the lawyer from disclosing the client's confidential prior-conviction information.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 3.03 (candor toward the tribunal; ABA Model Rule 3.3), specifically 3.03(a)(1), (a)(2), and (a)(5) and Comment 13, and Rule 1.05 (confidentiality of information; Model Rule 1.6). It treats the Rule 3.03 duties as exceptions to the confidentiality duty and relies on ABA Formal Opinions 287 and 87-353 and the Schuwerk and Sutton treatise.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal), MR 1.6 (confidentiality)
• Texas Disciplinary Rules 3.03 (incl. 3.03(a)(1), (a)(2), (a)(5); Comment 13), 1.05

Other opinions cited:

• ABA Formal Op. 287 (1953): under the Canons, the lawyer could not disclose the client's record but could make no false statement
• ABA Formal Op. 87-353 (1987): Model Rule 3.3 makes disclosure mandatory when the lawyer's client commits perjury the client will not rectify

Other references:

• Schuwerk and Sutton, A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Houston Law Review 1 (1990)

See also

• TX Ethics Op. 692: Correcting Client Perjury on Cross-Examination at a Deposition
• TX Ethics Op. 690: A Criminal Defense Lawyer Holding Tangible Evidence From a Client
• TX Ethics Op. 664: Duty on Receiving an Opposing Party's Confidential Information

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-504/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_504.pdf

Original opinion text

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

QUESTION PRESENTED

[PEC Matter No. 93-5]

Does a lawyer's duty of candor to a tribunal under Texas Disciplinary Rule 3.03 require defense counsel in a criminal case to correct mistaken or inaccurate statements made in court by a prosecutor about prior convictions of the defendant, if neither the defense lawyer nor the defendant makes any false statements to the court about such matters?

STATEMENT OF FACTS

Defendant in criminal trial asserted his Fifth Amendment privilege against self-incrimination and did not testify. The prosecutor introduced evidence in the form of affidavits and police reports, and the court ruled that the defendant was guilty. During the sentencing and punishment phase of the trial, the judge asked defense counsel whether he intended to seek to qualify defendant for probation. Defense counsel advised the court that probation could be considered under applicable law regardless if the defendant testified or not as to the absence of any prior felony convictions. The judge then asked the prosecutor, "Does the defendant have any prior convictions?" The prosecutor mistakenly stated to the court that police records reflect that defendant has no prior convictions. Prosecutor turned to the defendant and asked, "Right?" The defendant and defense counsel make no statement and the court granted probation of defendant's sentence.

When the judge asked the prosecutor about prior convictions of defendant, defense counsel knew that the prosecutor's statement to the court was inaccurate because defendant had previously informed defense counsel about his prior felony convictions. After the trial concluded, defense counsel advised defendant that if he is asked by probation officials about his prior arrests or convictions, defendant must answer and must answer truthfully. In fact, probation officials subsequently learn about defendant's prior convictions as a result at a post-trial interview in which the defendant answered such questions truthfully about his prior convictions.

DISCUSSION

Ethical dilemmas arising under Texas Disciplinary Rule 3.03 present very difficult issues because ethics rules governing lawyers' conduct attempt to balance, on the one hand, a lawyer's duty of candor to the court and, on the other hand, a lawyer's duty of loyalty to and zealousness on behalf of a client, along with a duty to maintain confidential client information. Establishing the line between these competing obligations requires an examination of the specific facts in view of the standards for candor to the tribunal articulated in the Texas Disciplinary Rules.

Pursuant to Texas Disciplinary Rule 3.03(a)(1), a lawyer may not knowingly make a false statement of material fact or law to a tribunal; pursuant to Texas Disciplinary Rule 3.03(a)(2), a lawyer may not knowingly fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act; pursuant to Texas Disciplinary Rule 3.03(a)(5), a lawyer may not knowingly offer or use evidence that the lawyer knows to be false. These rules constitute exceptions to a lawyer's duty to maintain client confidential information under Texas Disciplinary Rule 1.05.

The particular question presented in the Statement of Facts does not involve a lawyer knowingly making a false statement of material fact or law, or a situation where the client has permitted perjury or made a fraudulent statement in which the lawyer's silence may be tantamount to assisting a criminal or fraudulent act. Rather, the situation presents the issue of whether a lawyer may remain silent when neither he nor his client has made a false statement to the tribunal, but the lawyer knows that the court is relying upon mistaken or inaccurate information stated in court to the benefit of his client.

Several situations related to the issue of a criminal lawyer's silence about his client's prior criminal convictions have been considered in ethics opinions previously issued by the American Bar Association Committee on Ethics and Professional Responsibility. In ABA Formal Opinion 287 (1953) dealing with the earlier ABA Canons of Professional Ethics, three very similar situations were considered. These situations included: (1) the judge asks the defendant whether he has a criminal record and the defendant falsely answers that he has none; (2) the judge asks the defendant's lawyer whether his client has a criminal record; and 3) the judge is told in court by the custodian of criminal records that the defendant has no criminal record and the lawyer knows this information is incorrect based upon his own investigation or upon his client's prior disclosure of information to him.

The ABA Committee concluded under the earlier Canons of Professional Ethics that in each of these three situations, the lawyer's obligation under Canon 37 to preserve a client's confidential information prohibits any disclosure to the court of information the lawyer has concerning his client's prior criminal record. However, the lawyer must not make any false statement to the court.

After adoption of the Model Rules of Professional Conduct by the American Bar Association, the ABA's Committee on Professional Ethics reconsidered the issues presented in Formal Opinion 287. In ABA Formal Opinion 87-353 issued in 1987, the ABA Committee stated that Model Rule 3.3(a) and 3.3(b), which are virtually identical to Texas Disciplinary Rules 3.03(a)(1) and (2), represent a major policy change with regard to a lawyer's duty when his client testifies falsely. It is now mandatory under Texas Disciplinary Rule 3.03(a)(1) (as well as under Model Rule 3.3(a)), that when a lawyer knows that his client has committed perjury, the lawyer must disclose this knowledge to the tribunal if the lawyer cannot persuade the client to rectify the perjury. A lawyer's silence under those circumstances will have the effect of corroborating or assisting fraudulent misstatements made by a client.

Likewise, under Texas Disciplinary Rule 3.03(a)(1) of the Texas Disciplinary Rules (and Model Rule 3.3(a)(1) and if a judge specifically asks the defendant's lawyer whether his client has any prior criminal convictions, the lawyer may not make any false statements of fact to the court. If the question by the court to the defendant's lawyer follows an inaccurate statement in court by another person such as in the Statement of Facts, the lawyer must correct the inaccurate information made in court by a person other than the lawyer or his client, or make some other statement to the court indicating that the lawyer refuses to corroborate the inaccurate statement, or the lawyer may ask the court to excuse him from answering the question. If the lawyer refuses to corroborate the inaccurate statement or ask to be excused from answering the question, the court is at least alerted to a problem and presumably will inquire further to discover the truth.

Texas Disciplinary Rule 3.03(a)(2) requires disclosure to the tribunal only when it is necessary for a lawyer to "avoid assisting a criminal or fraudulent act." Hence, a lawyer's silence in the absence of client fraud or perjury does not require disclosure of the client's confidential information or correcting false information provided to the court by persons other than the lawyer or his client.

Texas Disciplinary Rule 3.03(a)(5) further provides that a lawyer shall not knowingly "offer or use evidence that the lawyer knows to be false." Does silence by the lawyer and his client in the situation described in the Statement of Facts constitute the use of evidence that the lawyer knows to be false? The phrase "or use" evidence was added into Texas Disciplinary Rule 3.03(a)(5) primarily to address a circumstance where a client or other witness who testified truthfully under direct examination later provides false testimony under cross-examination by another party. See Schuwerk & Sutton, A Guide to the Texas Disciplinary Rules of Professional Conduct, 27A Houston Law Review 1, 264, 265 (October 1990). Comment 13 to Texas Disciplinary Rule 3.03 suggests that while a lawyer should urge his client to correct or withdraw false evidence given in cross-examination, disclosure of such perjured testimony or other false evidence given during examination by another party is discretionary rather than mandatory. Accordingly, silence by the lawyer under the Statement of Facts should not be deemed to be "use" of false testimony under Texas Disciplinary Rule 3.03(a)(5).

Since neither lawyer or his client in the Statement of Facts made a false statement to the court, the lawyer has not violated Texas Disciplinary Rule 3.03(a)(1); since the client did not commit fraud or perjury, the lawyer's silence does not constitute assisting a criminal or fraudulent act. The lawyer may remain silent without violating Texas Disciplinary Rule 3.03, and therefore is prohibited under the Texas Disciplinary Rule 1.05 from disclosing confidential information about his client's prior convictions.

CONCLUSION

Since neither lawyer or his client in the Statement of Facts made a false statement to the court, the lawyer has not violated Texas Disciplinary Rule 3.03(a)(1); since the client did not commit fraud or perjury, the lawyer's silence does not constitute assisting a criminal or fraudulent act. The lawyer may remain silent without violating Texas Disciplinary Rule 3.03, and therefore is prohibited under the Texas Disciplinary Rule 1.05 from disclosing confidential information about his client's prior convictions.

Tex. Comm. On Professional Ethics, Op. 504 (1994)