Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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In the absence of consent by an attorney's client, should the attorney reveal the client's prior criminal conviction during a sentencing proceeding where such prior conviction is a public record and relevant to the proceeding?
The revelation of the client's prior criminal conviction without the consent of the client would breach the attorney's duty to maintain the client's confidence and preserve the client's secrets. However, the attorney also has a duty not to intentionally mislead or deceive the sentencing court. Both duties must be upheld.
Rules 2-111(B)(2) and 7-105 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code sections 6068 and 6128.
This inquiry concerns a criminal sentencing proceeding. During representation of a criminal client, the client reveals a prior criminal conviction to the attorney. The prior record is relevant to the sentencing judge's decision, and it is a matter of public record. The court, however, is not aware of the prior conviction. The client has not given consent to the attorney to reveal the record. Should the attorney volunteer the prior conviction to the court during the sentencing proceeding? Further, if the court asks the attorney whether the client has a prior record, how should the attorney respond?
Under the facts, the client informed the attorney of the prior criminal record. However, this information is not protected against disclosure to the court under attorney-client privilege (Evid. Code 750 et. seq.) for the reason that it is independently a matter of public record. However, Business and Professions Code section 6068, subdivision(e) imposes a duty on the attorney extending beyond the attorney-client privilege. Business and Professions Code section 6068, subdivision(e) provides:
"It is the duty of an attorney to do all of the following:...
(e) to maintain inviolate the confidence, at every peril to himself [or herself] to preserve the secret, of his or her client."
This statute has two parts, each of which applies to the facts presented here. The Committee interprets the first part of the statute - "to maintain inviolate the confidence.. . of the client" - to mean that an attorney may not do anything to breach the trust reposed in him or her by the client. (In re Boone (1897) 83 F. 944, 952-953; In re Soale (1916) 31 Cal.App. 144, 153; Anderson v. Eaton (1930) 211 Cal.App. 113.) In this case, the consent of the client has not been given and presumably it has been withheld precisely because of the prejudicial nature of such a disclosure. Disclosure would harm the client and be utterly inconsistent with the relationship of trust protected by section 6068(e). (Industrial Indemnity Company v. Great American Insurance Company (1977) 73 Cal.App.3d 529, 536 [140 Cal.Rptr. 806].)
Business and Professions Code section 6068, subdivision(e) also requires an attorney to "preserve the secrets of his client." Although the term "secrets" is not defined in the California Rules of Professional Conduct, a definition can be found in the ABA Code of Professional Responsibility, DR 4-101(a)1: "information gained in the professional relationships... the disclosure which would be embarrassing and would be likely to be detrimental to the client..." This second aspect of section 6068, subdivision(e) also forbids disclosure, because the criminal record is properly classified as a "secret." Thus, section 6068, subdivision(e) precludes disclosure, whether voluntary or in response to an inquiry from the court, by the lawyer, absent consent from the client.
Attorneys also owe a duty of candor to the court. "It is the duty of an attorney (t)o employ... such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." (Bus. & Prof. Code, 6068(d) and rule 7-105 of the Rules Prof. Cond.) An attorney must maintain the respect due the courts of justice and judicial officers. (Bus. & Prof. Code, 6068(b).) Further, an attorney is guilty of a misdemeanor for intentionally deceiving a judge. (Bus. & Prof. Code, 6128.) In sum, these provisions prohibit an attorney from intentionally misleading or deceiving a court.2
A dilemma may thus arise because an attorney has a duty of candor to the sentencing judge with respect to a client's criminal record and also has a duty to maintain the client's confidence. This dilemma can be resolved.
The Committee on Professional Ethics of the American Bar Association has suggested the proper attorney behavior in Formal Opinion No. 287 (1953). Beginning with an inquiry similar to the present one, the ABA Committee majority said:
"... the lawyer is not bound by fidelity to the client to tell the court what he knows to be an untruth, and should ask the court to excuse him from answering the question, and retire from the case, though this could doubtless put the court on further inquiry as to the truth.
"Even, however, if the court does not directly ask the lawyer this question, such an inquiry may well be implied from the circumstances, including the lawyer's previous relations with the court ....
"If under all the circumstances, the lawyer believes that the court relies on him as corroborating the correctness of the (prior record status) the lawyer's duty of candor and fairness to the court require him, in our opinion to advise the court not to rely on counsel's personal knowledge as to the facts of the client's record... No client may demand or expect of his lawyer, in the furtherance of his cause, disloyalty to the law whose minister he is .... " (Emphasis added.)
The dissent emphasized the duty of candor, stating that the lawyer is obligated to inform the court of the prior record. We believe the majority opinion is more persuasive. It is the opinion of this Committee that neither the duty of attorney confidence nor the duty of candor can be subordinated one to the other. Both duties must be upheld. An attorney may never intentionally mislead or deceive a judge. An attorney must also maintain the confidence of the client. An attorney should not reveal the client's prior criminal record to the court and should not intentionally deceive or mislead the court. The attorney should remain silent.
If the attorney's silence appears to be relied upon by the court as an affirmation that there is no prior record, the attorney is obligated by the duty of candor to inform the court that the silence is not intended as an affirmation, and that it is not appropriate for the attorney to comment further.
It is the Committee's opinion that if the attorney is expressly asked by the court whether the client has a prior record, the record still should not be disclosed, but the attorney should suggest to the court that other sources would be more appropriate to determine such information. The question, for example, might be deflected to the prosecution. Other responses which do not reveal the record and are not intended to deceive or mislead the court may also be proper.3
Unlike the majority opinion in ABA Formal Opinion No. 287, this Committee does not believe that the attorney would always be required to withdraw from the case. Withdrawal would be mandatory only if continued representation would result in a violation of a statute (e.g., Bus. & Prof. Code, 6068, subd.(e)) or Rule of Professional Conduct.4
The Committee recognizes that the facts of this inquiry may also raise constitutional questions concerning the privilege against self-incrimination. These and similar questions are beyond the authority of the Committee. Therefore, the Committee expresses no opinion on them.5
The Committee also expresses no opinion on the propriety of a judge asking a defense attorney about the prior criminal record of the attorney's client. The ethical and constitutional concerns confronting the defense attorney would be lessened if judges did not require the defense attorney, expressly or implicitly, to reveal the client's record.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 See Cal. Formal Opinion 1983-71. (The ABA Model Code of Professional Responsibility, like sister state rules and court opinions, is not binding in California although it may be persuasive in those instances where there is no controlling Rule of Professional Conduct, statute or court ruling in California.)
2 See also, Franklin v. State Bar (1986) 41 Cal.3d 700. (Attorney misleading hearing panel in State Bar disciplinary proceeding by a less than candid response to an inquiry.)
3 Compare Griffis v. S.S. Kresge Co. (1984) 150 Cal.App.3d 491. (Attorney under a legal duty to inform the court of all facts material to the court's inquiry concerning five-year limitation period for bringing action to trial in civil case.)
4 See Rule of Professional Conduct 2-111.
5 The policy underlying the privilege is extensively discussed at 8 Wigmore on Evidence (McNaughton rev. ed., 1961), page 317. Quoting a portion of the Wigmore discussion, the United States Supreme Court has said, "It (the privilege) reflects many of our fundamental values and most noble aspirations: our willingness to subject those suspected of crime to the cruel dilemma of self-accusation, perjury or contempt our preference for an accusatorial rather than an inquisitorial system of criminal justice .... " Murphy v. Waterfront Commission (1964) 378 U.S. 52, 55.
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