Thursday, February 17, 2011

Counsel’s Duty of Candour to the Court As Against Duty of Confidentiality: American Perspective

The duty to be candid means that counsel cannot misrepresent the facts to the court, either by statement or silence, when the latter comprises deception. If what needs to be disclosed violates confidentiality or solicitor client privilege, thorny difficulties can arise.

For example:

From South Sarolina Criminal Defence Blog:

December 18, 2008 by Bobby G. Fredrick

Client confidentiality v. duty of candor to the court

Recently I was arguing a magistrate court appeal, in the circuit court, when the judge asked me what my communications had been to my client concerning the client's trial date. The appeal was from the decision of the magistrate to proceed with the trial even though the required warnings under State v. Jackson, 288 S.C. 94, 341 S.E.2d 375 (1986), City of Aiken v. Koontz, and State v. Fairey had not been given (before a trial in absence can proceed, there must be a finding by the court that 1) the defendant received notice of the trial date; and 2) the defendant received a warning that the trial would proceed in his or her absence if they fail to appear).

I refused to answer the question, explaining to the court that I was placed in a difficult position, as I could not reveal the subject of client communications. The judge's response was that I have a duty of candor to the court that required my response - I have to disagree, as I will explain below. This has bothered me quite a bit, and I've been analyzing the issue since that day. Several times I have seen judges ask attorneys questions such as this (the ones that come to mind are whether their clients have communicated with them regarding court dates or whether the attorney has information regarding their clients criminal record) and the attorneys typically answer the questions without hesitation. I have seen attorneys volunteer information on client communications or their client's criminal history without even being asked.

(About questions regarding the client's criminal history - the attorney cannot lie about the client's criminal history to the court or to the prosecutor, but I believe the attorney's duty of confidentiality and loyalty to the client requires that the attorney not answer the question.)

Back to the question regarding communications with the client regarding court dates, there are many considerations, including the rules governing client confidentiality, the Sixth Amendment right to counsel which includes the duty of confidentiality (without which the right to counsel would be meaningless), the client's Fifth Amendment right against self-incrimination which necessarily includes the client's right against self-incrimination through the lawyer, and the broader policy considerations that require public trust in the sanctity of the attorney-client privilege.

Any rule which required an attorney to reveal such communications to the court would result in persons accused of crimes, and specifically this client, believing that they cannot trust their lawyer, and it would be that much worse because it would be a distrust caused by the judicial branch of the government. The Rules of confidentiality and the attorney-client privilege are both based on the same policy considerations: "Attorneys can best serve their clients and represent client interests only with full and frank disclosure between the client and attorney; and freedom from fear of disclosure by the attorney fosters full disclosure by the client."

Rule 1.6 of the S.C. Rules of Professional Conduct governs confidentiality, and states:

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal act;
(2) to prevent reasonably certain death or substantial bodily harm;
(3) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(4) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(5) to secure legal advice about the lawyer's compliance with these Rules;
(6) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(7) to comply with other law or a court order.

(1) through (4) deal with what is called the "crime/fraud exception" to the rules of confidentiality; if a client intends to engage in a future crime, the lawyer may reveal confidences to prevent the crime (notice this is not mandatory, it is permissive). This never applies to past conduct, which would go to the very nature of a criminal defense lawyer's advice to clients. (5) applies when an attorney is seeking advice regarding the rules from another attorney, in which case the privilege is simply extended to the second attorney. (6) involves situations where a lawyer is sued by his client, and it allows an attorney to discuss confidences to the extent necessary to defend his conduct in a PCR case.
(7) would apply, except for the Constitutional considerations. I believe that (7) would insulate an attorney from discipline as a result of answering these questions when ordered by the court, but would not require the attorney to disclose his client's confidences, as the Rule uses the language "may" as opposed to "must."

A thorough discussion of the constitutional considerations in this situation is found in NACDL Ethics Advisory Opinion 03-03, which dealt with the question of whether Montana courts could enforce a rule requiring defense attorneys to report to the prosecutor and court whether their clients were reporting to the attorney each week:

Besides the ethical rules of privilege and the statutory and common law attorney-client privilege, NACDL submits that the questioned practice is also unconstitutional because it requires the lawyer to testify against the client and it violates the unfettered right to counsel. Indeed, it subverts the right to counsel by making the lawyer a necessary witness against the client. It is contrary to the foundation of the constitutional “right to counsel” with absolute loyalty to the client by his or her criminal defense lawyer which is subject to “enhanced importance” and “special vigilance” to protect the interests of the Sixth Amendment. State in Interest of S.G., infra. NACDL has always held the position that client confidentiality and loyalty are a Sixth Amendment right of the client.

This ethics opinion also notes some state cases which are directly on point, State v. Hawes in Nebraska, and Byrd v. State in Arkansas, where defense counsel refused to testify as to whether they had advised their client of a court date:
The NACDL Lawyer’s Assistance Strike Force handled a case at trial and on appeal for aNebraska public defender who refused to testify whether he advised a client of a court date.

The practice in Lincoln, Nebraska, was for the court to advise defense counsel of the next court setting, and defense counsel was to advise the client. When the public defender refused to disclose whether he advised the client of a court setting at which the client failed to appear, because it would make the lawyer a witness against his own client, he was held in contempt. The Nebraska Supreme Court reversed, holding that the communication between the lawyer and the client or the client and the lawyer about a court date was privileged and forced disclosure violated confidentiality and the duty of loyalty. State v. Hawes, 251 Neb. 305, 309-11, 556 N.W.2d 634, 638 (1996) . . .

Arkansas faced a similar issue in Byrd v. State, 326 Ark. 10, 14-15, 929 S.W.2d 151, 153(1996), and it too refused to allow counsel to testify to any communication from the client to thelawyer, even involving ministerial matters about court dates because the privilege was not a “oneway one” and protected communications flowing both ways. Virtually any communication concerning the representation was presumed privileged.

The ethics opinion notes that, when the lawyer respectfully refuses to respond to such a question, invoking attorney client privilege, the duty of confidentiality, and the client's Fifth and Sixth Amendment rights, "[t]he court will likely respond that the lawyer has a duty of candor with the court, which the lawyer does. But, it is not applicable." The lawyer's duty of candor to the court is found in Rule 3.3: Candor toward the tribunal, which states that a lawyer cannot lie to the court, must correct untrue statements that were made by the lawyer to the court, must inform the court of case law that is adverse to the lawyer's position, and cannot offer evidence or testimony, other than the testimony of a defendant in a criminal case, that the lawyer knows is false:

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

The Rule also expands on the crime fraud exception, stating that the lawyer must not permit a client to permit a fraud on the court and can disclose a fraud on the court if necessary, without being in violation of Rule 1.6. Nothing in this rule applies to the situation at hand, where a court attempts to compel a lawyer to disclose prior communications with a client regarding court dates (or criminal history).

We are fortunate in South Carolina to have some quite conscientious judges, who will usually consider the issues and not make snap judgments in situations such as this. I think that when the situation does arise, it is usually because the judge and the attorney have not thought it through and analyzed it. It should never come to this, but if a lawyer is threatened with contempt proceedings for refusing to disclose, NACDL's position is that the lawyer must refuse to disclose and then challenge the contempt by appeal.

It is sometimes the lawyer’s lot that he or she must take a contempt citation to protect the client’s constitutional rights. When that happens, the lawyer is acting in the best traditions of the American criminal defense bar—risking oneself to uphold loyalty to and to protect the client—and this kind of contempt would not be harmful to the lawyer’s reputation.

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