ETHICS DOCKET NO. 2016-04

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2016-04

Whether an attorney has any duty to take steps to correct a sentencing order prepared by the clerk which erroneously states the sentence in his client’s favor after the mistake was brought to the attention of the court, referred to, and rejected by, the clerk.

Whether an attorney has any duty to take steps to correct a sentencing order prepared by the clerk which erroneously states the sentence in his client’s favor after the mistake was brought to the attention of the court, referred to, and rejected by, the clerk.

BACKGROUND

You advise that you represented a criminal defendant in post-conviction proceedings.  The post-conviction court resentenced your client, giving him credit for time he had already served indicating that he should receive credit from date A to date B.

To document this, the court issued a Commitment Record in order to specifically inform the Division of Corrections exactly how much additional time the defendant must serve.  This Commitment Record was incorrect because it did not give defendant all of the credit for time served that the court had earlier granted him on the record. 

You then wrote the court asking the judge to correct the Commitment Record.  The court did not respond to your letter so you called chambers and were directed to speak with the courtroom clerk.  You did so, and the clerk then issued a new Commitment Record.

When you received this new Commitment Record it was still incorrect, but this time the error was in your client’s favor, which would allow him to be released earlier than the court had intended.  You again spoke with the clerk, who insisted that she had carefully reviewed the record and that it was correct.

REQUESTED OPINION

You are now requesting an opinion as to whether under the Maryland Rules of Professional Conduct (“MRPC”) you have a duty to again contact the court and take steps to help it understand why the existing Commitment Record is incorrect.

COMMITTEE RESPONSE

The Committee does not believe that the MRPC require you to take any further steps to correct the Commitment Record. 

EXPLANATION

This matter involves the interplay between a lawyer’s duty of Candor Toward the Tribunal, MRPC 3.3, and a lawyer’s duty of confidentiality concerning information relating to representation of a client, MRPC, 1.6.  This topic of the proper application of required disclosures under Rule 1.6 has been the subject of much discussion and controversy over the years and has been seen as especially problematic in the context of criminal defense practice (See Hazard and Hodes, The Law of Lawyering, 3d Edition §9.19).  While there is no clearly definitive answer, the Committee believes that when the competing interests are properly weighed, the correct response is that you have done all that you have to do.

A. Rule 3.3:  Candor Toward the Tribunal

MRPC 3.3 states, in relevant part, that: 

1. A lawyer shall not knowingly:

   1. (1) Make a false statement of material fact or law to a tribunal or fail to correct false statement of material fact or law previously made to the tribunal by the lawyer;
   2. (2) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

   *          *          *

2. The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

   *          *          *

3. In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

MRPC 3.3 (emphasis supplied)

B.  Rule 1.6 Confidentiality

MRPC 1.6 essentially states as follows:

A lawyer shall not reveal information relating to the representation of a client unless there is informed consent or disclosure is impliedly authorized, or if one of the following circumstances arises:

1. A lawyer reasonably believes it is necessary to reveal such information to prevent reasonably certain death or substantial bodily harm;
2. A lawyer reasonably believes it is necessary to reveal such information to prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to another in furtherance of which the client has used or is using the lawyer’s services;
3. A lawyer reasonably believes it is necessary to reveal such information to prevent substantial injury to another that has resulted from client’s commission of a crime or a fraud in furtherance of which the client has used the lawyer;
4. A lawyer reasonably believes it is necessary to reveal such information to ensure compliance with the Rules of Professional Conduct;
5. A lawyer reasonably believes it is necessary to reveal such information to establish a claim or a defense in a controversy between lawyer and client, or to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based on conduct in which the client was involved or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
6. A lawyer reasonably believes it is necessary to reveal such information to comply with the Rules of Professional Conduct or a court order or other law.

The situation you have described does not fit squarely into either of the pertinent rules.  Rule 3.3(a) requires a false statement by the lawyer.  No false statement was made to the court and so there is nothing to correct.  3.3(a)(1) simply does not apply.  Similarly, Rule 3.3(a)(2) is inapplicable because there was no criminal or fraudulent act committed by your client – so there is nothing to disclose.

All of the relevant information was presented to the clerk, so even if Rule 3.3 applied through both conversations with the clerk all facts, both supportive of, and adverse to your client, were discussed. 

While we do not believe there is anything in Rule 3.3 that requires you to do more than you have already done, we still must consider the implications of the confidentiality provisions of Rule 1.6.  As noted, that rule requires that a lawyer not reveal information relating to the representation of a client except pursuant to certain exceptions set out in the rule.  Abundant authority exists to the effect that all information gained “in the course of representation” or “as a result of representation” of a client is to remain confidential (except, of course, things that are within the public domain.)  Hazard and Hodes, supra at §9.5.)

Despite that, it seems clear to us that none of the stated exceptions in Rule 1.6 apply here.  It is not necessary to disclose the information about the mistake because there is no ‘reasonably certain death or bodily harm.”  Disclosure is not necessary to prevent a crime or fraud substantially injuring another through which the client has used your services; it is not necessary to prevent substantial injury to another resulting from any fraud or crime your client has committed; it is, as discussed above, not necessary to ensure compliance with the MRPC; there is no controversy between you and your client that you would have to disclose such information in order to resolve; and finally, there is no rule of professional conduct, court order or other law requiring disclosure.  The facts as presented do not fall within any of those identified exceptions to the confidentiality rule.

4845-3906-7433, v. 2