In Virginia, can a criminal defense lawyer choose a bench trial, waiving the client's right to a jury, without the client's authorization, and is failing to tell the court the client never consented a misrepresentation?

Plain-English summary

An assistant public defender could not reach her client before a local deadline to tell the court whether to set the case as a jury or bench trial. Assuming the client would not want a jury given the sentencing risk, she elected a bench trial without telling the prosecutor or court that she had not consulted the client. On the trial day the defendant said he had not consented and demanded a jury, and the case had to be continued.

The opinion concludes the lawyer violated Rule 1.2(a). Unlike a means-versus-objectives judgment call, Rule 1.2(a) names "whether to waive jury trial" as a decision the client makes; deciding that constitutional right unilaterally is outside the lawyer's authority. The committee then addresses Rule 3.3(a)(1) (no knowingly false statement to a tribunal) and Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation). The lawyer's bare statement that she wished a bench trial was literally true, but read in context, and given the settled rule (Rule 1.2, Jones v. Commonwealth, Va. Code § 19.2-257, and Rule 3A:13(b)) that only the defendant can waive a jury, the election signaled to the court and prosecutor that she had the client's consent. Citing Comment 2 to Rule 3.3, the committee treats the failure to disclose the absence of consent as the equivalent of an affirmative misrepresentation.

The committee hedges on intent: if the lawyer genuinely did not know consent was required, there is no knowing falsehood, but such ignorance in a lawyer practicing exclusively criminal defense would raise a competence question under Rule 1.1. On the assumed facts (a knowledgeable lawyer who lacked consent and let the court rely on her election), the failure to disclose violated Rules 3.3 and 8.4.

In practice

The opinion holds that, under the Virginia rules as they stood at the time, the choice to waive a jury and proceed to a bench trial belongs to the client under Rule 1.2(a), and a lawyer may not make it unilaterally. Per the opinion, presenting a bench-trial election to the court while knowing the client has not consented, and not disclosing that, can amount to an affirmative misrepresentation under Rule 3.3 and Rule 8.4(c); the alternative explanation (ignorance of the consent requirement) implicates the competence duty under Rule 1.1.

Common questions

Q: Can a criminal defense lawyer waive a jury trial for the client?

A: No. The opinion states Rule 1.2(a) expressly reserves the decision whether to waive a jury trial to the client, so the lawyer cannot make that election without the client's consent.

Q: Is choosing a bench trial without the client a misrepresentation to the court?

A: Per the opinion, electing a bench trial while knowing the client has not consented, and failing to disclose that, can be an affirmative misrepresentation under Rules 3.3 and 8.4(c), because the court and prosecutor reasonably rely on the election as reflecting client consent.

Q: What should the lawyer have done after losing contact with the client?

A: The opinion notes in a footnote that, under Rule 1.16, the appropriate course when a client fails to maintain contact is to move the court for permission to withdraw, though the facts were insufficient to opine on that course.

Background and rules framework

The opinion interprets Rule 1.2(a) (Model Rule 1.2(a)), which allocates decisions between lawyer and client and specifically reserves to the client, in a criminal case, the decisions on plea, jury waiver, and whether to testify. It applies Rule 3.3(a)(1) (candor to the tribunal) and Rule 8.4(c) (dishonesty and misrepresentation), reading Comment 2 to Rule 3.3 on failures to disclose, and references Rule 1.1 (competence) as the alternative framing. It cites Jones v. Commonwealth, Va. Code § 19.2-257, and Rule 3A:13(b) for the principle that only the accused can waive a jury.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2(a) / Virginia Rule 1.2(a) (allocation of decisions; client decides jury waiver)
• Model Rule 3.3(a)(1) / Virginia Rule 3.3(a)(1) (candor to the tribunal)
• Model Rule 8.4(c) / Virginia Rule 8.4(c) (dishonesty, fraud, deceit, misrepresentation)
• Model Rule 1.1 / Virginia Rule 1.1 (competence)

Statutes:

• Va. Code § 19.2-257 (bench trial for a felony only where the accused consents after advice of counsel)
• Rules of the Virginia Supreme Court, Rule 3A:13(b) (bench trial only after a voluntary, intelligent waiver)

Cases:

• Jones v. Commonwealth, 24 Va. App. 636, 484 S.E.2d 618 (1997), counsel may not surrender the accused's jury-trial right without authorization

Other opinions cited:

• Virginia LEO 1816 (client directive on putting on no defense; means-versus-objectives analysis)

See also

• VA LEO 1854: Settlement Negotiations in a Criminal Case
• VA LEO 1862: Prosecutor's Timely Disclosure (Brady)
• VA LEO 1874: Limited-Scope Ghostwriting for Pro Se Litigants

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1823.pdf

Original opinion text

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

Committee Opinion
January 10, 2006
LEGAL ETHICS OPINION 1823

CAN A DEFENSE ATTORNEY WAIVE A
CLIENT’S RIGHT TO A JURY TRIAL
AND FAIL TO DISCLOSE TO THE
COURT THAT THE CLIENT HAS NOT
AUTHORIZED THE WAIVER?

You have presented a hypothetical involving a criminal defense attorney’s selection of
a bench trial for her client. The attorney serves as an assistant public defender and was
assigned the case of Mr. Smith. At the preliminary hearing, the matter was certified for
trial to the Circuit Court. Local rules require that the defense attorney advise the court
prior to the next docket call whether to schedule the case as a jury trial or a bench trial. If
set as a bench trial, the court does not summons a jury. The attorney had been unable to
contact her client 1 and was, therefore, unable to determine if he wishes to waive a jury
trial and be tried by the court. Aware that juries have imposed lengthy sentences in
similar cases, the attorney assumed the defendant would not want a jury trial. She
advised the Commonwealth’s Attorney and the court that she wished the matter to be set
for trial as a bench trial. She did not inform the prosecutor or the court that she had not
spoken with her client, nor had he consented to waiving the jury trial. The case was set on
the court’s docket as a bench trial. On the day of the trial, with the witnesses present, the
defendant was asked by the judge if he consented to waiving a jury and being tried by the
court. The defendant said that he did not consent and requested a jury trial. As a result,
the case had to be continued to a later date.
Regarding this hypothetical, you have asked the following questions:
1) Does the fact that the lawyer had requested that the case be set as a bench trial,
thereby waiving the defendant’s right to a jury trial, without express authorization from
the client to do so, violate Rule 1.2(a)?
2) Does the lawyer’s failure to disclose to the court that she had not consulted with her
client regarding waiving a jury and that she did not have authority from her client to do
so constitute an affirmative misrepresentation to the court?
Rule 1.2 governs the parameters of the scope of an attorney’s authority. Rule 1.2
provides as follows:
(a) A lawyer shall abide by a client's decisions concerning the
objectives of representation, subject to paragraphs (b), (c), and (d), and
shall consult with the client as to the means by which they are to be
pursued. A lawyer shall abide by a client's decision, after consultation
with the lawyer, whether to accept an offer of settlement of a matter. In
1

Pursuant to Rule 1.16(4), the Committee notes that the appropriate course of conduct for an attorney when
faced with the failure of the client to cooperate by failing to maintain contact is to move the Court for
permission to withdraw. The facts presented in the hypothetical do not provide sufficient information for
an opinion on that course of conduct.

Committee Opinion
January 10, 2006
a criminal case, the lawyer shall abide by the client's decision, after
consultation with the lawyer, as to a plea to be entered, whether to
waive jury trial and whether the client will testify.
(b) A lawyer may limit the objectives of the representation if the
client consents after consultation.
(c) A lawyer shall not counsel a client to engage, or assist a client, in
conduct that the lawyer knows is criminal or fraudulent, but a lawyer
may discuss the legal consequences of any proposed course of conduct
with a client and may counsel or assist a client to make a good faith
effort to determine the validity, scope, meaning, or application of the
law.
(d) A lawyer may take such action on behalf of the client as is
impliedly authorized to carry out the representation.
(e) When a lawyer knows that a client expects assistance not
permitted by the Rules of Professional Conduct or other law, the lawyer
shall consult with the client regarding the relevant limitations on the
lawyer's conduct.

Specifically, the rule addresses which decisions may be made by the attorney and
which are within the exclusive purview of the client. In many instances, as indicated by
the language of paragraph (a) of the rule, the determination of what decisions are for the
lawyer and which are for the client involves a careful analysis of means versus
objectives. See e.g., LEO 1816 (determining whether an attorney must respect a client’s
directive to put on no defense where the client is hoping for the death penalty). The
present situation is not such a case. Unlike the decision to be made in LEO 1816, the
present situation is addressed expressly on the face of the rule. Rule 1.2 (a) highlights the
decision “whether to waive a jury trial” as incontrovertibly one to be made by the client.
It is outside the scope of an attorney’s authority to decide that constitutional right for his
client; the attorney must consult with the client as to the client’s choice regarding a jury
trial versus a bench trial.
When the attorney in the present scenario assumed her client would like to waive a jury
trial, failed to consult with him prior to informing the court on the issue, and failed to
consult with her client even after informing the court of the jury trial waiver, this attorney
was acting outside the scope of her authority. Such unilateral action regarding the right
to a jury trial was in violation of Rule 1.2.
Your second question asks, in light of the Rule 1.2 violation, whether the attorney’s
remarks to the court constituted an impermissible misrepresentation under Rule 3.3(a)(1).
That provision establishes the following prohibition: “An attorney shall not knowingly
make a false statement of fact or law to a tribunal.” Similarly, Rule 8.4(c) prohibits an

Committee Opinion
January 10, 2006
attorney from engaging in conduct involving “dishonesty, fraud, deceit or
misrepresentation which reflects adversely on the lawyer’s fitness to practice law.”
In the present scenario, the attorney states to the court that she wishes to have the
client’s case set for a bench trial. On its face and with no context, the statement does not
seem to be false or involve misrepresentation; she does in fact wish to have a bench trial.
However, the remark must be considered in context. The following authorities, among
others, each contribute to the common understanding by the criminal bar that a client can
only waive the constitutional right to a jury trial through voluntary, intelligent consent:
1) Rule 1.2, as discussed above;
2) Jones v. Commonwealth, 24 Va. App. 636, 484 S.E.2d 618
(1997)(noting that an attorney may not, without client authorization,
surrender an accused’s right to a jury trial);
3) Virginia Code Section 19.2-257 (allowing for bench trials for felony
cases only where the accused consents after being advised by counsel);
and
4) Rules of the Virginia Supreme Court, Rule 3A:13(b) (allowing for a
bench trial in Circuit Court only after the court determines that the
accused’s consent was voluntarily and intelligently given).
The Committee opines that is unlikely that this defense attorney, employed as a public
defender, was ignorant of this established legal principle. Assuming, therefore, that the
attorney was cognizant of the requirement for proper consent from the client, the
Committee opines that the attorney was presenting a falsehood, a misrepresentation to the
court when she elected the bench trial on behalf of her client. The Committee notes
Comment 2 to Rule 3.3, stating in pertinent part that “there are circumstances where
failure to make a disclosure is the equivalent of an affirmative misrepresentation. The
Committee considers the present scenario to present such circumstances. When this
defense attorney elected a bench trial on behalf her client, the prosecutor and the court
would each have reasonably relied upon that statement as indicating that she had
consulted with her client to make that election, as such consultation is a prerequisite to
electing against the right to a jury trial. Thus, election of a bench trial together with a
failure to disclose the lack of client consent means that this representation to the court
may, under certain circumstances, constitute an affirmative misrepresentation.
The only other, less likely, explanation for this attorney’s statement, despite no consent
from her client, would be that she in fact was completely ignorant of the requirement that
the client must provide voluntary, intelligent consent. The Committee finds such
ignorance of this established principle unlikely in an attorney whose practice is
exclusively criminal defense, such as a public defender. If that nonetheless were the
case, there could be no knowing falsehood or misrepresentation. However, such
ignorance of the constitutional rights of a criminal defendant would raise serious question

Committee Opinion
January 10, 2006
as to whether the attorney had met her duty of competence under Rule 1.1. 2 The limited
facts provided of course do not establish conclusively whether this attorney was operating
out of ignorance or if instead she was knowingly making a false representation. If she
knew that proper consent was required, that she did not have it, and that her election
statement would convince the court and the prosecutor that she did have that consent,
then her failure to disclose that she had not discussed the matter with her client was an
impermissible, affirmative misrepresentation in violation of both Rules 3.3 and 8.4.
This opinion is advisory only, based only on the facts you presented and not binding on
any court or tribunal.

2

Rule 1.1 states as follows, “A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for
the representation.”