Bar Counsel Notes: Confidentiality of Information/Candor Toward the Tribunal

Attorney represents a criminal defendant charged with domestic violence assault. The client failed to appear at a recent hearing. On the hearing date and shortly before it was scheduled to begin, client called Attorney and told her that he was in Connecticut and could not get transportation back to Maine. At the hearing, Attorney informed the Court of that factual reason for client's absence. The judge chose to disbelieve client's excuse, concluded it was a failure to appear and issued a bench warrant without bail. Client has recently confidentially informed Attorney that he had lied to her and that - as the Court surmised - he was actually in Maine during that hearing. Does Attorney have to disclose to the police his client's current whereabouts, and what does she now have to tell the Court?

Attorney cannot tell the police anything unless the Court orders her to do so. Her source of the client's current location is confidential information under M. R. Prof. Conduct 1.6. However, under these facts, Rule 1.6 is specifically "superseded" by Attorney's requirement to be completely truthful with the Court. See Rule 3.3(c). Therefore, under Rule 3.3(a) Attorney must call on her client to correct the earlier misrepresentation given to the tribunal. If client refuses to do so, then Attorney must reveal client's deceit to the court. See MRPC 3.3(a)(1),(3);(c).

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.