Can a prosecutor condition a plea offer on defense counsel keeping a witness's identity secret from the defendant, and can defense counsel withhold that information to get a better plea?

Plain-English summary

The opinion addresses a plea negotiation in which the Commonwealth's Attorney wants to "protect" a witness (Witness X) by restricting how the witness's identity and involvement are disseminated. The prosecutor communicates a plea offer that discloses the material witnesses, including Witness X, but conditions the offer on defense counsel neither revealing Witness X's identity nor the scope of the witness's involvement to the client; if the defendant learns of Witness X, the offer is withdrawn. The committee analyzes this under Rule 3.4(h) (fairness to opposing party and counsel) and Rule 1.4(c) (communication).

On the prosecutor's side, the committee concludes that Rule 3.4(h) directly prohibits a lawyer from requesting that a person other than a client refrain from voluntarily giving relevant information to another party, and the rule's exceptions are limited to civil matters. Because Witness X's identity and involvement are relevant information, the prosecutor cannot disclose that information to defense counsel and then require counsel to keep it from the client. The committee notes an alternative the prosecutor may use: because the prosecutor is neither obligated to offer a plea nor to disclose all inculpatory evidence, the prosecutor could offer a plea based on a nameless confidential informant, leaving counsel and the client to assess the offer on the limited information available.

On the defense side, the committee concludes that Rule 1.4(c) requires counsel to inform the client of facts pertinent to the matter that may significantly affect settlement or resolution, so counsel cannot sequester salient facts that bear on the plea decision. The committee adds that Rule 1.4(c) permits counsel to withhold information when the client already has enough relevant information to make an informed decision, but whether Witness X's identity is the kind of additional information the client needs is fact specific and must be decided case by case. Fundamentally, counsel cannot withhold from the defendant facts pertinent to the decision to accept a plea.

In practice

Under the Virginia rules as they stood when the opinion issued, the committee holds that a prosecutor who has disclosed a witness to defense counsel may not condition a plea offer on counsel keeping that witness's identity and involvement from the client, because Rule 3.4(h) bars asking a non-client to refrain from giving relevant information to another party and limits its exceptions to civil matters. The opinion holds that the prosecutor may instead structure the offer around a nameless confidential informant, since the prosecutor need not offer a plea or disclose all inculpatory evidence. On the defense side, the opinion holds that Rule 1.4(c) bars counsel from withholding salient facts that bear on the plea decision, while allowing counsel to withhold information the client does not need to make an informed decision, a determination the opinion treats as fact specific.

Common questions

Q: Can a prosecutor require defense counsel to hide a witness's identity from the defendant as a condition of a plea?

A: No. The opinion concludes that once the prosecutor has disclosed the witness to defense counsel, Rule 3.4(h) bars the prosecutor from asking counsel to refrain from giving that relevant information to the defendant, and the rule's exceptions apply only to civil matters.

Q: Is there any way for the prosecutor to keep a witness's identity confidential during plea talks?

A: The opinion notes the prosecutor may offer a plea based on a nameless confidential informant, because the prosecutor is not obligated to offer a plea or to disclose all inculpatory evidence; counsel and client then evaluate the offer on the limited information available.

Q: Can defense counsel withhold information from the client to secure a favorable plea?

A: No, not as to salient facts. The opinion concludes that Rule 1.4(c) requires counsel to convey facts pertinent to the plea decision; counsel may withhold information only where the client already has enough to make an informed decision, which is a fact-specific judgment.

Background and rules framework

The opinion interprets Rule 3.4(h) of the Virginia Rules of Professional Conduct (Model Rule 3.4(f)), which prohibits a lawyer from requesting a person other than a client to refrain from voluntarily giving relevant information to another party, subject to exceptions the rule limits to civil matters. It also interprets Rule 1.4(c) (Model Rule 1.4), which requires a lawyer to inform the client of facts pertinent to the matter and of communications that may significantly affect settlement or resolution.

Citations and references

Rules of Professional Conduct:

• Model Rule 3.4(f) / Va. Rule 3.4(h) (requesting a person to refrain from giving relevant information; civil-only exceptions)
• Model Rule 1.4 / Va. Rule 1.4(c) (informing the client of facts pertinent to settlement or resolution)

See also

• VSB Ethics Op. 1864: Withholding Criminal Discovery From the Client
• VSB Ethics Op. 1862: Prosecutor's Brady Disclosure and Plea Negotiations

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1854.pdf

Original opinion text

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

LEGAL ETHICS OPINION 1854

SETTLEMENT NEGOTIATIONS IN A
CRIMINAL CASE.

This hypothetical considers a criminal case in which the Commonwealth’s Attorney (CA) and
the defense counsel seek to negotiate a plea agreement. Generally, the CA has no legal or ethical
obligation to a particular witness in this case; however, the CA wishes to “protect” Witness X by
restricting dissemination of the witness’ identity and involvement. The CA communicates a
settlement offer to the defense counsel, advising the defense counsel of material witnesses in the
case, including the name and involvement of Witness X whom the CA wishes to “protect.” A
condition of the proffered plea agreement requires that the defense counsel neither reveal to the
client the identity of Witness X nor the scope of Witness X’s involvement in the case. The CA
makes it clear to the defense counsel that if the defendant is made aware of Witness X’s identity
and involvement, then the plea offer will be withdrawn.
QUESTIONS PRESENTED
1) May a CA make a settlement offer to the defense counsel in a criminal case, requiring
the defense counsel to refrain from providing relevant information to his or her client as a
condition of the settlement offer?
2) May the defense counsel in a criminal case withhold from the client relevant
information if withholding such information results in a desirable plea agreement for the
client?
APPLICABLE RULES AND ANALYSIS
The appropriate and controlling rules relative to this hypothetical are Rules 1.4(c) and 3.4(h),
which deal with communication and fairness to the opposing party and counsel. These issues
and questions have not been addressed by this Committee in past legal ethics opinions.
The first question is whether it is ethical, as part of the proffered plea agreement, to require the
defense counsel to keep Witness X’s identity and involvement secret from his or her client, the
defendant. The CA is attempting to protect Witness X from possible retribution, but Rule 3.4(h)1
directly prohibits the CA from requesting a person (the defense counsel) to refrain from
voluntarily giving relevant information to another party (the defendant). The exceptions noted in
Rule 3.4(h) are specifically limited to civil cases2; therefore, the primary rule prohibits a lawyer
from requesting that a person refrain from giving relevant information to another party. In this
hypothetical, the CA cannot offer a plea agreement detailing the identity and involvement of
1

Rule 3.4 Fairness to Opposing Party and Counsel
A lawyer shall not:
(h) Request a person other than a client to refrain from voluntarily giving relevant information to another
party unless:
(1)
the information is relevant in a pending civil matter;
(2)
the person in a civil matter is a relative or a current or former employee or other agent of a client;
and
(3)
the lawyer reasonably believes that the person’s interests will not be adversely affected by
refraining from giving such information.

2

Rule 3.4, Comment [4], “Paragraph (h) prohibits lawyers from requesting persons other than clients to refrain
from voluntarily giving relevant information. The Rule contains an exception permitting lawyers to advise current
or former employees or other agents of a client to refrain from giving information to another party, because such
persons may identify their interests with those of the client. The exception is limited to civil matters because of
concerns with allegations of obstruction of justice (including perceived intimidation of witnesses) that could be
made in a criminal investigation and prosecution. See also Rule 4.2.”

Witness X and then ask the defense counsel to refrain from sharing Witness X’s identity with the
client, because the identity and involvement of Witness X is considered to be relevant
information.
Alternatively, because the CA is neither obligated to offer a plea agreement nor to provide all
inculpatory evidence or witness testimony to the defense, the CA would be permitted to offer a
plea based upon a nameless confidential informant for the defense counsel to present to his
client. The defense counsel and his or her client would then have to assess the plea offer based
upon the limited information available to them.
The second question concerns the defense counsel’s communication duties when presented
with the CA’s plea agreement that requires the defense counsel not to reveal Witness X’s
identity. In response to the first question, the Committee opines that Rule 3.4(h) prohibits the
CA from imposing such a requirement after having disclosed material facts to the defense
counsel. The Committee also finds it unethical for the defense counsel to sequester certain facts
from his or her client, as Rule 1.4(c)3 requires the defense counsel to inform the client of all of
the matter’s pertinent facts that will affect the determination of the defendant’s plea.4 Rule 1.4(c)
would permit the defense counsel to withhold such information from the defendant if the defense
counsel believes that the defendant has enough relevant information about the pertinent facts to
make an informed decision; however, whether Witness X’s identity and involvement is
additional information that must be disclosed to the client in order for the client to make an
informed decision about accepting or rejecting the plea offer is fact specific and must be
determined on a case-by-case basis. Fundamentally, the defense counsel cannot withhold from
the defendant salient facts or information that would be pertinent to the defendant’s decision to
accept a settlement or plea agreement in his or her matter.
This opinion is advisory only and not binding on any court or tribunal.
Committee Opinion
October 5, 2010

3

Rule 1.4
Communication
(c)
A lawyer shall inform the client of facts pertinent to the matter and of communications from
another party that may significantly affect settlement or resolution of the matter.

4

Rule 1.4, Comment [5] explains: “The client should have sufficient information to participate intelligently in
decisions concerning the objectives of the representation and the means by which they are to be pursued, to the
extent the client is willing and able to do so. For example, a lawyer negotiating on behalf of a client should provide
the client with facts relevant to the matter, inform the client of communications from another party and take other
reasonable steps that permit the client to make a decision regarding an offer from another party. A lawyer who
receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea agreement in a
criminal case should promptly inform the client of its substance unless prior discussions with the client have left it
clear that the proposal will be unacceptable. See Rule 1.2(a).…”