Bar Counsel Notes: Candor Toward the Tribunal

Attorney has a multi-time shoplifter defendant who is supposed to appear in court to finalize a deferred disposition. If she complies with the terms of that deferred disposition, then her current criminal case will be reduced to a misdemeanor theft charge, instead of the current felony status. However, client has just emailed Attorney that she has now been charged with a new shoplifting matter in a different Prosecutorial District than that of the pending felony theft charge. Should Attorney inform the District Attorney (DA) that is handling the pending deferred disposition theft matter about this new charge of theft against his client in that other Prosecutorial District?

Yes. That new criminal charge is public information. Now that Attorney knows about it, he runs a significant risk of lack of candor with the court if he fails to inform the DA and the court about this new criminal charge before the deferred disposition is finally completed and a disposition is approved and imposed by the court. Before doing so, the Attorney must first inform his client that he is required to directly inform and report to the DA and the court about her new related charge of similar criminal conduct before the deferred disposition is completed. See M. R. Prof. Conduct 1.6 and 3.3.

*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.