If a court, the prosecutor, or a clerk makes a mistake that benefits a criminal defense client, must the lawyer correct it?

Plain-English summary

Opinion E-84-7, revised February 2, 2021, addresses whether a criminal defense lawyer must correct a mistake by the court, the prosecutor, or court personnel that benefits the client. The committee considers three scenarios: a court that imposes concurrent rather than the agreed consecutive sentences; a substitute prosecutor who recommends concurrent sentences contrary to the actual plea agreement; and a clerk who records both charges as dismissed when only one was. In each, the lawyer played no role in creating or concealing the mistake.

The committee analyzes SCR 20:3.3, which bars a lawyer from knowingly making or failing to correct a false statement of material fact or law to a tribunal, offering false evidence, or failing to take remedial measures for false evidence or criminal/fraudulent conduct related to the proceeding. It notes that those prohibitions concern knowing affirmative deception, while comment [3] recognizes that in some circumstances a failure to disclose is the equivalent of an affirmative misrepresentation. The committee concludes none of the three scenarios is such a circumstance: all relevant facts are in public records, neither the lawyer nor the client created or concealed the mistakes, and the lawyer's knowledge is information relating to the representation protected by SCR 20:1.6, so disclosure is not mandatory and could harm the client. The committee distinguishes cases finding omissions to be misrepresentations (such as a client's death, a client's use of a false identity, or the lawyer's own involvement in providing misleading information) and notes that opinions from other jurisdictions, with one exception, are consistent. It cross-references Wisconsin Ethics Opinion E-86-06 on a client's prior record.

The committee separately stresses the duty to communicate with the client (SCR 20:1.4(b), 20:2.1): even where there is no ethical duty to disclose, the lawyer must explain the potential risks and benefits of staying silent or correcting the error. The benefit may be fleeting and the error likely to surface; inaction discovered later may cost the client and lawyer credibility in the local legal community; and a client's instruction to stay silent could implicate the lawyer's own interests (SCR 20:1.7(a)(2)). The committee states the options should be discussed in detail and the client's final decision documented in the file.

In practice

Under this opinion, a Wisconsin lawyer who comes to learn of an error by the court, the opponent, or court personnel that benefits the client, and which the client had no role in causing, is not required to take action to correct the mistake and does not violate SCR 20:3.3(a)(1) by not doing so. The opinion conditions that conclusion on the lawyer consulting with the client about the potential risks and benefits of taking no action, and states that the final decision is the client's and should be documented in the file. The opinion notes the analysis can change if the tribunal directly asks the lawyer or the client about the information; the lawyer may not give a false answer but may decline to answer, and a questioned client should be advised to let the lawyer respond.

Common questions

Q: Must a defense lawyer tell the court when it imposes a lighter sentence than the plea agreement called for?

A: The opinion concludes the lawyer is not required to correct the court's error where the lawyer did not cause it, because the lawyer's knowledge is protected information and no affirmative misrepresentation is involved.

Q: Does the answer change if the mistake was made by the prosecutor or a clerk rather than the judge?

A: No. The opinion reaches the same conclusion for errors by opposing counsel and by court personnel in its three scenarios.

Q: Is there anything the lawyer must do even if disclosure is not required?

A: Yes. The opinion states the lawyer must consult with the client about the risks and benefits of staying silent, and documents that the final decision belongs to the client.

Q: What if the judge directly asks the lawyer or client about the matter?

A: The opinion states the lawyer may not provide a false answer but may decline to answer, and a client who is questioned should be advised to allow the lawyer to respond.

Background and rules framework

The opinion interprets SCR 20:3.3 / Model Rule 3.3 (candor toward the tribunal) together with SCR 20:1.6 / Model Rule 1.6 (confidentiality), SCR 20:4.1 / Model Rule 4.1 (truthfulness to others), and the client-communication and advisor rules SCR 20:1.4(b) and 20:2.1 / Model Rules 1.4 and 2.1. It also notes the personal-interest conflict in SCR 20:1.7(a)(2) / Model Rule 1.7 when a client instructs silence.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:3.3 / Model Rule 3.3 (candor toward the tribunal)
• Wis. SCR 20:1.6 / Model Rule 1.6 (confidentiality)
• Wis. SCR 20:4.1 / Model Rule 4.1 (truthfulness to others)
• Wis. SCR 20:1.4(b), 20:2.1 / Model Rules 1.4, 2.1 (communication; advisor)
• Wis. SCR 20:1.7(a)(2) / Model Rule 1.7 (personal-interest conflict)

Cases:

• Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 F. Supp. 507 (E.D. Mich. 1983), failure to disclose client's death
• In re Sieg, 183 Wis. 2d 704, 515 N.W.2d 694 (1994), client's use of a sibling's identity
• In re Alia, 2006 WI 12, altered expert report

Other opinions cited:

• Wisconsin Ethics Opinion E-86-06 (client's prior record)
• Mich. Ethics Op. RI-165 (1993); Va. Legal Ethics Ops. 1400 (1991), 1186 (1986); Ohio Ethics Op. 99-8; ABA Formal Op. 95-397

See also

• WI Ethics Op. E-86-06: Candor to the Court on a Client's Prior Convictions
• WI Ethics Op. E-94-1: Duty to Disclose Adverse Authority
• WI Ethics Op. EF-21-03: Responsibilities With a Fugitive Client

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-84-7%20Duty%20to%20Correct%20Error%20-%20Revised%20FINAL.pdf