Must a criminal defense lawyer correct a court that is unaware of the client's prior OWI convictions, when the error benefits the client and no one has asked the lawyer about it?

Plain-English summary

This is the committee's 2018 revision of Opinion E-86-06, updated to reflect Wisconsin's current Rules of Professional Conduct. It addresses a recurring criminal scenario: a first-offense OWI is non-criminal in Wisconsin, but the number of prior OWI convictions, which the state must prove, drives escalating penalties. A defendant with two prior convictions is incorrectly charged with a second rather than a third offense, and at a hearing it becomes apparent that the court and prosecutor are unaware of the correct number of priors.

The committee concludes that defense counsel has no affirmative duty to proactively disclose the prior convictions when the court appears unaware but has not asked the lawyer or client about them. Under SCR 20:3.3, the lawyer must not knowingly make a false statement of fact to the tribunal, but the rule does not require the lawyer to volunteer facts harmful to the client. The committee grounds this in the allocation of the burden of proof: defense counsel has no obligation to help the state prove prior convictions, either by offering proof or by correcting an inaccurate recitation, and a lawyer generally has no duty to make an opposing party aware of facts that help that party but damage the lawyer's client (citing the Restatement (Third) of the Law Governing Lawyers section 120).

The committee separates four situations. Where the court or prosecutor simply misunderstands the facts, counsel has no duty to correct the mistake. Where the court directly asks counsel about the priors, counsel may not knowingly report an incorrect number, but need not supply adverse information; counsel may respectfully decline to answer, suggest the inquiry is best directed to the prosecutor, or seek the client's permission to provide the information, because the client's prior convictions are information protected by SCR 20:1.6. Where the court directly asks the client, the client should not answer falsely but is not obliged to assist the prosecution; the committee notes that a false statement by the client could require remedial action under SCR 20:3.3(b) even if harmful to the client.

In practice

Under this opinion, in a Wisconsin criminal proceeding addressed by the current rules, defense counsel who learns the court or prosecutor has undercounted the client's prior OWI convictions is not required to volunteer the correction, and the opinion treats counsel's knowledge of the priors as confidential information under SCR 20:1.6. The opinion states that counsel may not knowingly report an incorrect number if asked directly, and that counsel may decline to answer, redirect the inquiry to the prosecutor, or seek the client's consent to disclose. The opinion advises that counsel should prepare the client in advance, normally advising that counsel rather than the client respond to questions from the court or opponent, and that if the client must answer, the client should answer truthfully.

Common questions

Q: Must a defense lawyer tell the court it has the wrong number of the client's prior OWI convictions?

A: The opinion concludes there is no affirmative duty to proactively correct the court's or prosecutor's mistaken understanding when the court has not asked the lawyer or client about the priors.

Q: What if the judge asks defense counsel directly about the prior convictions?

A: The opinion concludes counsel may not knowingly report an incorrect number, but need not provide adverse information; counsel may decline to answer, suggest the inquiry go to the prosecutor, or seek the client's permission to disclose.

Q: What if the judge asks the client directly?

A: The opinion concludes the client should not answer falsely but is not obliged to assist the prosecution, and that a false statement by the client about the number of priors could trigger a remedial duty under SCR 20:3.3(b) even if harmful to the client.

Q: Is the lawyer's knowledge of the priors confidential?

A: Yes. The opinion treats counsel's knowledge of the client's prior convictions as information that relates to the representation and is protected by SCR 20:1.6(a).

Background and rules framework

The opinion interprets SCR 20:3.3 / Model Rule 3.3 (candor toward the tribunal), which bars knowingly making a false statement of fact to a tribunal and requires remedial measures for criminal or fraudulent conduct related to the proceeding, balanced against SCR 20:1.6 / Model Rule 1.6 (confidentiality of information). It also references SCR 20:1.2(d) and 20:8.4(a) in discussing the lawyer's preparation of the client. The committee uses the Restatement (Third) of the Law Governing Lawyers section 120 to explain that the burden-of-proof rules, not a duty of candor, allocate responsibility for bringing forward evidence.

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 of information)
• Wis. SCR 20:1.2(d) / Model Rule 1.2(d); Wis. SCR 20:8.4(a) / Model Rule 8.4(a)

Statutes:

• Wis. Stat. sections 946.31, 946.32, 946.65 (false statements / perjury)

Cases:

• State v. McDowell, 2004 WI 70, 681 N.W.2d 500

Other opinions cited:

• ABA Formal Ethics Op. 87-353
• Restatement (Third) of the Law Governing Lawyers section 120

See also

• WI Ethics Op. E-94-1: Duty to Disclose Adverse Authority
• Alaska Ethics Op. 2022-2: Client False Statements to the Court
• CA COPRAC Op. 2019-200: Perjured Testimony
• ME Ethics Op. 140: Obligation to Disclose Client's Perjury to the Court

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-86-06%20Revised.pdf