In an ex parte sentencing, must a criminal defense lawyer tell the judge about the prosecutor's sentencing recommendation, and is it improper to take the client to court without responding to the prosecutor first?

Plain-English summary

The committee addressed a criminal defense lawyer who, in an assumed fact pattern, took a client before a judge to enter a guilty plea and be sentenced without informing the tribunal of the prosecutor's sentencing recommendation. RPC 3.3(f) requires an attorney to inform a tribunal of all relevant facts known to the attorney in an ex parte proceeding so the tribunal can make an informed decision, and that duty applies even when the facts are adverse to the client. The committee concluded that the prosecutor's recommendation was such a relevant fact, so RPC 3.3(f) would not sanction withholding it from the tribunal.

The committee also addressed the lawyer's dealing with the prosecutor. On the assumed facts, a standard local procedure governed pre-trial agreements and the defense lawyer had told the prosecutor he or she would get back about executing the agreement, creating a situation in which the prosecutor could reasonably expect a response before the client was taken to court. The committee was of the opinion that not getting back to the prosecutor before taking the client to court was dishonest, and possibly deceitful and misrepresentative, which would violate RPC 8.4(c), and that because full disclosure in ex parte proceedings serves judicial administration, the conduct might also violate RPC 8.4(d). The committee added that the RPC preamble urges the highest standards of conduct, noting that a lawyer who gives his word should abide by it.

Currency note

This opinion was issued in 1988, before the Washington State Bar Association's adoption of 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 Treat this page as historical context, not current guidance.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: In an ex parte sentencing, did the defense lawyer have to tell the judge about the prosecutor's recommendation?

A: Under this 1988 opinion, yes. The committee said the recommendation was a relevant fact requiring disclosure under RPC 3.3(f), even though it was adverse to the client.

Q: Why did the lawyer's silence raise RPC 8.4 concerns?

A: The committee found that taking the client to court without getting back to the prosecutor, who reasonably expected a response on the pre-trial agreement, was dishonest and could violate RPC 8.4(c), and possibly RPC 8.4(d).

Q: Did the committee rely on anything beyond the specific rules?

A: It pointed to the RPC preamble's call for the highest standards of conduct, observing that a lawyer who gives his word should abide by it.

Background and rules framework

RPC 3.3(f), Washington's counterpart to ABA Model Rule 3.3's ex parte provision, requires a lawyer in an ex parte proceeding to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse. RPC 8.4(c) and 8.4(d), Washington's versions of Model Rule 8.4, define professional misconduct to include conduct involving dishonesty, fraud, deceit, or misrepresentation and conduct prejudicial to the administration of justice. The committee applied those provisions to both the non-disclosure to the tribunal and the failure to respond to the prosecutor.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 3.3 (candor toward the tribunal; ex parte proceedings)
• ABA Model Rule 3.5 (impartiality and decorum of the tribunal)
• ABA Model Rule 8.4 (misconduct)
• Washington RPC 3.3(f); RPC 3.5(b); RPC 8.4(c); RPC 8.4(d)

See also

• WA Ethics Op. 1250 sibling on candor

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=330

Original opinion text

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

RPC 3.3 (f) requires an attorney to inform a tribunal of all relevant facts known to the attorney when in an ex parte proceeding. The purpose of such disclosure is to permit the tribunal to make an informed decision. The disclosure of relevant facts is required whether adverse to a client. In RPC Inquiry #1250, we assume that the defense attorney did not inform the tribunal of the Prosecuting Attorney's sentencing recommendation. The defense attorney did not inform the Prosecutor he/she would have his client enter a guilty plea and receive sentence. The Prosecutor's recommendation is a relevant fact requiring disclosure so that the tribunal can make an informed decision on sentencing. Thus, under these facts as assumed here, RPC 3.3(f) would not sanction the non-disclosure to the tribunal. Apparently, we can assume that there is a standard procedure known to the local bar relating to Pre-trial Agreements. The defense attorney is assumed to have told the Prosecutor that he/she would get back as to executing the Agreement. This created a situation in which the Prosecutor could reasonably expect the defense attorney to respond to the Agreement before having his client appear before a judge to be sentenced. As such, the defense attorney's conduct in not getting back to the Prosecutor before taking his client to court is dishonest and may be deceitful and misrepresentative as those terms are commonly used. Accordingly, such conduct would violate RPC 8.4 (c). Assuming that a tribunal is being fully informed in ex parte proceedings [see RPC 3.3(f)] serves the purpose of judicial administration, the defense attorney's conduct may violate RPC 8.4 (d). We note also that the RPC preamble states that "A consequence obligation of lawyers is to maintain the highest standards of ethical conduct." This urges the highest, not the minimally acceptable, level of conduct. A lawyer who gives his word should abide by it.