If a lawyer notices a client has alcohol on his breath in court, may the lawyer tell the judge?

Plain-English summary

A lawyer asked about the obligation that arises when a client appears in court to petition for a deferred prosecution and the lawyer recognizes that the client has alcohol on his breath. The committee was of the opinion that RPC 1.6 would prohibit the lawyer from disclosing this information to the court, assuming there were not otherwise any misrepresentations being made to the court.

Currency note

This opinion was issued in 1992, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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: Can a lawyer tell the judge that the client appears intoxicated in court?

A: The committee was of the opinion that RPC 1.6 prohibits the lawyer from disclosing the client's apparent intoxication to the court.

Q: Did the committee attach any condition to that conclusion?

A: Yes. It assumed there were not otherwise any misrepresentations being made to the court.

Background and rules framework

The opinion applied RPC 1.6 (confidentiality of information), corresponding to ABA Model Rule 1.6. The committee treated the client's apparent intoxication as confidential information the lawyer learned in the representation, so disclosure to the court was prohibited, with the qualification that the analysis assumed no misrepresentations were being made to the court that would otherwise implicate the lawyer's candor duties.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6

See also

• WA Ethics Op. 1213: Client Confidence; Whereabouts of Client
• WA Ethics Op. 1235: Client Confidence; Privacy of Communications

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=556

Original opinion text

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

Advisory Opinion: 1476
Year Issued: 1992
RPC(s): RPC 1.6
Subject: Disclosure of client confidence or secret; disclosure of client intoxication to court

The Committee reviewed your inquiry regarding a lawyer's obligation when a client appeared in court to petition for a deferred prosecution and the attorney recognizes that the client has alcohol on his breath. The Committee was of the opinion that Rule 1.6 of the Rules of Professional Conduct would prohibit the lawyer from disclosing this information to the court, assuming that there were not otherwise any misrepresentations being made to the court.