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Florida Bar Professional Ethics Committee reaffirms advisory opinion addressing duties of lawyer whose criminal defense client is proceeding under false name [Added 6/23/08] At its meeting in Boca Raton on January 20, 2008, the Florida Bar Professional Ethics Committee reaffirmed Proposed Advisory Opinion 90-6 (Reconsideration). PAO 90-6 (Reconsideration) addresses the duties of a lawyer whose criminal defense client is proceeding under a false name. Among other conclusions, PAO 90-6 (Reconsideration) states that a lawyer who learns of the false identity after undertaking the representation must attempt to persuade the client to disclose that the client is proceeding under a false name and, if that fails, must make disclosure to the court. Proposed Advisory Opinion 90-6 (Reconsideration) is reproduced below. Some interested Florida Bar members, including representatives of the Bar's Criminal Law Section and the Florida Association of Criminal Defense Lawyers, filed comments regarding PAO 90-6 (Reconsideration). Those persons who filed comments now have 30 days in which to request review by the Bar's Board of Governors. (See Florida Bar Procedures for Ruling on Questions of Ethics.) Watch sunEthics.com for updates.
PROPOSED ADVISORY OPINION 90‑6 (Reconsideration) In former Florida Ethics Opinion 90-6, a criminal defense attorney inquired about an attorney's obligation upon discovering that a client who is a defendant in a pending criminal proceeding gave an alias when arrested, and proceedings have been brought under the alias. The attorney asked whether this information must be revealed to the court and, if so, whether the attorney must inform the court of the client's true identity. Former Florida Ethics Opinion 90-6 concluded that a criminal defense attorney who learns that his or her client is proceeding under a false name may not inform the court of this fact due to the attorney‑client privilege, the client's constitutional right to effective assistance of counsel, or the client's constitutional privilege against self‑incrimination, but that the attorney may not assist the client in perpetrating or furthering a crime or a fraud on the court. The opinion further concluded that if the court requests information about the client's identity or record, "the client and defense counsel may answer truthfully (if the client, after consultation with counsel, decides that doing so is in his or her best interests) or may decline to answer on the basis of any applicable privilege." Florida Ethics Opinion 90-6 focused exclusively on the client testifying. In any criminal case, a notice of appearance will be filed, pleadings will be filed, the case will be called, and the like, all under the false name. The Committee therefore withdrew Florida Ethics Opinion 90-6 at its March 16, 2007 meeting. In order to provide guidance to Florida Bar members on this issue, the Committee issues this opinion. Rule of Professional Conduct 4-3.3(a) states in pertinent part: (a) False Evidence; Duty to Disclose. A lawyer shall not knowingly:
(1) make a false statement of material fact or law to a tribunal;
(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[.] Additionally, Rule 4-1.2(d) prohibits a lawyer from assisting a client in criminal or fraudulent conduct, while Rule 4-8.4(c) prohibits a lawyer from "dishonesty, fraud, deceit, or misrepresentation." Based on the above rules, the Committee is of the opinion that if the lawyer knows that the client is proceeding under a false identity, the lawyer would be involved in the fraud on the court. For example, the mere act of filing pleadings under the false name used by the client or responding to the alias when called at a docket sounding involve misrepresentation to the court in which the lawyer cannot participate. By filing under the false name or responding to the false name, the lawyer essentially represents that the client is that person. The Committee will address the following three scenarios: 1) the lawyer learns in the initial consultation before the lawyer accepts representation that a criminal defendant is being charged and proceeding under a false name; 2) the lawyer learns after representation begins but before the lawyer makes a formal appearance in the case that a criminal defendant client is being charged and proceeding under a false name; and 3) the lawyer learns after the lawyer has formally appeared in the case that a criminal defendant client is being charged and proceeding under a false name. If the lawyer learns that the client has given a false name at the outset of the representation, before the lawyer has accepted representation of the criminal defendant in the case, the lawyer must decline to represent the client on the basis of the false identity unless the prospective client agrees to disclose to the court that the client is proceeding under a false name. See Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3 (a)(2) and (b), 4-3.4(c), 4-4.1[this needs to be discussed - Randolph requested, but other subcommittee members were unsure of its addition], and 4-8.4, Rules of Professional Conduct. If the lawyer learns of the false identity after representation has begun but before the lawyer has formally appeared in the case, the lawyer should inform the client that the lawyer cannot assist the client in misleading the court regarding the client's identity, and the lawyer should attempt to persuade the client to disclose that the client is proceeding under a false name. Rules 4-1.2(d), 4-1.4, 4-1.6(b)(1), 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct. If the client refuses to disclose the information and insists that the client will maintain the false identity throughout the case, the lawyer must disclose that the client is proceeding under a false name to the appropriate authority if disclosure is necessary to prevent the client from committing a crime. Rule 4-1.6(b)(1), Rules of Professional Conduct. The appropriate authority under these circumstances may be the prosecutor or the court. If the lawyer discloses without client consent, the lawyer must then withdraw from the client's representation. Rules 4-1.7(a) and 4-1.16(a), Rules of Professional Conduct. If the lawyer determines that disclosure is not necessary to prevent the client from committing a crime, the lawyer should withdraw from the client's representation to avoid assisting the client in a fraud on the court. Rules 4-1.2(d), 4-1.4, 4-1.6(b)(1), 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct. If the lawyer learns of the false identity after the lawyer has formally appeared in the case, the lawyer should inform the client that the lawyer cannot assist the client in misleading the court regarding the client's identity, and the lawyer should attempt to persuade the client to disclose that the client is proceeding under a false name. Rules 4-1.2(d), 4-1.4, 4-1.6 (b)(1), 4-3.3 (a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct. If the lawyer is unsuccessful in persuading the client, then the lawyer must disclose that the client is proceeding under a false name to the court. Rules 4-1.6 (b)(1), and 4-3.3 (a)(2) and (b), and 4-3.4(c), Rules of Professional Conduct. As stated in the Comment to Rule 4-3.3, it is up to the court to determine the appropriate course regarding the information that has been disclosed. The lawyer’s disclosure may create a conflict between the lawyer and the client and thus could require the lawyer to move to withdraw. Rules 4-1.7(a), and 1.16 (a), Rules of Professional Conduct. If the lawyer moves to withdraw but the court declines to permit withdrawal, the lawyer must continue the representation. Rule 4-1.16(c), Rules of Professional Conduct. All of the above scenarios presuppose that there is nothing in the court file to indicate that the client has been charged and is proceeding under a false name. If the client has been charged as a "John Doe" or "Jane Doe" and clearly is openly refusing to disclose his or her identity, there is no misrepresentation to the court and the above rules are not applicable. See Rule 4-3.4(c). Under this circumstance, the lawyer need not specifically disclose to the court that the client is proceeding under a false name. Rule 4-3.3, Rules of Professional Conduct. Whether the client's true identity is privileged and therefore cannot be disclosed is question of law that is outside the scope of an ethics opinion. Additionally, whether the client's constitutional rights to counsel and against self-incrimination supersede the lawyer's ethical responsibilities under the Rules Regulating The Florida Bar is outside the scope of this committee's authority to opine. |
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