Must defense counsel correct a prosecutor's mistaken statement about restitution when the doubt comes only from a client confidence?

Plain-English summary

Before sentencing, a prosecutor told defense counsel that restitution had been made. The defendant privately told counsel he had not paid it. Counsel told the court that the prosecutor said there was no restitution issue; the prosecutor then asserted payment, and the court sentenced without restitution. The prosecutor later learned the assertion was wrong.

The committee treated the defendant's statement as protected by former DR 4-101. It found counsel's attribution of the prosecutor's statement literally true, with no false evidence or client fraud established. It did not require counsel to reveal the confidence or seek the client's consent to correct the record, though it said asking for consent might have been preferable. The opinion stressed its difficult tension with candor and distinguished a situation where the defendant answered a direct question falsely.

Currency note

This opinion was issued in 1989 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.

Common questions

Q: Why did counsel's statement to the court not violate the Code?

A: Counsel reported what the prosecutor had said rather than asserting from personal knowledge that restitution had been paid, and the committee found no false evidence or client fraud on those facts.

Q: Did the opinion require counsel to ask the client for permission to correct the record?

A: No. It said that might have been preferable but was not required by the former Code.

Background and rules framework

The committee reconciled former DR 4-101 confidentiality with DR 7-102's disclosure and false-statement provisions and DR 1-102's honesty requirements. It treated its answer as tied closely to the stated sentencing facts.

Citations and references

Rules of Professional Conduct:

• Vermont Code of Professional Responsibility DR 4-101, DR 7-102, DR 1-102, EC 7-3, and EC 7-9

See also

• Vermont Ethics Op. 89-06: Postconviction expert error
• Vermont Ethics Op. 95-08: Adverse medical opinion

Source

• Landing page: Vermont Bar Association disclosure opinions
• Original PDF: Opinion 89-17
• Vermont Supreme Court rules history, “These rules apply to lawyer conduct after September 1, 1999.”