If a court's sentencing order mistakenly gives a client less jail time than the judge announced, must the defense lawyer point out the error?
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This page answers the general question as of 1986. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee understood the facts to be that a sentencing order was prepared by a prosecuting attorney and signed by a judge without any participation by the inquiring lawyer. The sentencing order provided for less jail time than the lawyer understood the judge had orally set at the time of sentencing. The question was whether the lawyer had to bring the apparent error to anyone's attention.
Assuming the lawyer had no part whatsoever in the preparation of the order, the committee was of the opinion that RPC 1.6 obligated the lawyer to remain silent regarding the apparent error, because it would constitute a secret of the lawyer's client.
Currency note
This opinion was issued in 1986, before the 2006 revisions to the Washington Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: If a sentencing order gives the client a break the judge did not announce, must the defense lawyer correct it?
A: Under this 1986 opinion, no, assuming the lawyer had no role in preparing the order. The committee concluded RPC 1.6 required silence because the discrepancy was a secret of the client.
Q: Did it matter who prepared the order?
A: Yes. The committee's conclusion rested on the assumption that the lawyer had no part whatsoever in preparing the order, which was drafted by the prosecutor and signed by the judge.
Q: What made the information a protected secret?
A: The committee treated the favorable discrepancy as something that "would constitute a secret of your client" under RPC 1.6, which obligated the lawyer to remain silent.
Background and rules framework
RPC 1.6 (Washington's version of ABA Model Rule 1.6) governs a lawyer's duty of confidentiality, captioned by the bar here as addressing client confidences and secrets. The committee applied RPC 1.6 to information about an apparent error in a sentencing order the lawyer had not prepared, treating that information as a secret of the client.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.6 (confidentiality of information)
- Washington RPC 1.6 (client confidences and secrets)
See also
- ABA Formal Op. 98-412: Client Violating a Court Order
- NY State Bar Op. 466: Holding Proceeds of a Client's Crime
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=117
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Committee understood the facts of your inquiry to be that a sentencing order was prepared by a prosecuting attorney and signed by a judge without any participation by you. As the sentencing order provides for less jail time than you understood to be orally set by the judge at the time of sentencing, the Committee was of the opinion that, assuming that you had no part whatsoever of the preparation of that order, RPC 1.6 would obligate you to remain silent regarding the apparent error, because it would constitute a secret of your client.
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