Must criminal defense counsel disclose a client's criminal history to the prosecutor, and may counsel do so without consent?
Apply this to your situation
This page answers the general question as of 1991. Ask about yours and see what the current Washington Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
The inquiry concerned Formal Ethics Opinion 188 and its application to disclosures to prosecuting attorneys. The committee was of the opinion that RPC 4.1(a) would prohibit a lawyer from making misrepresentations to a prosecuting attorney.
The committee was further of the opinion that, since Formal Opinion 188 states a lawyer may not make disclosures to a court without client consent, disclosures could not be made to the prosecutor without consent as required by RPC 1.6.
Currency note
This opinion was issued in 1991, 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 Treat this page as historical context, not current guidance.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: Must defense counsel tell the prosecutor about the client's criminal history?
A: Under this 1991 opinion, no without consent; the committee was of the opinion that disclosures could not be made to the prosecutor without client consent as required by RPC 1.6.
Q: Can the lawyer misrepresent the client's record to the prosecutor?
A: No. The committee was of the opinion that RPC 4.1(a) prohibits making misrepresentations to a prosecuting attorney.
Background and rules framework
At the time of this opinion, Washington's RPC 1.6 governed confidentiality and RPC 4.1(a) prohibited a lawyer from knowingly making a false statement of material fact to a third person, the subjects the Model Rules place in Rules 1.6 and 4.1. The committee read its prior Formal Opinion 188, on non-disclosure to a court without consent, to apply equally to the prosecutor, while holding the lawyer to truthfulness under RPC 4.1(a).
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.6 (confidentiality)
- ABA Model Rule 4.1 (truthfulness in statements to others)
- Washington RPC 1.6, 4.1(a)
Other opinions cited:
- WSBA Formal Opinion 188 (non-disclosure to a court without client consent)
See also
- WA Ethics Op. 1388: Telling the Court a Client Is Violating a Release Order
- WA Ethics Op. 1359: Disclosing Police Reports to a Criminal Defendant
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=474
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Committee reviewed your inquiry concerning Formal Ethics Opinion #188 and its application to disclosures to prosecuting attorneys. The Committee was of the opinion that RPC 4.1(a) would prohibit a lawyer from making misrepresentations to a prosecuting attorney and that, since Formal Opinion #188 states that a lawyer may not make disclosures to a court without client consent, disclosures could not be made to the prosecutor without consent as required by RPC 1.6.
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