Opinion #209. Disclosure Issues in Deferred Disposition Settings

Issued by the Professional Ethics Commission

Date Issued: May 20, 2014

The Commission has been asked to address the following questions: Pursuant to Title 17-A, M.R.S.A. § 1348-A, all deferred dispositions are required to have a Court-imposed condition that the defendant refrain from criminal conduct. Pursuant to § 1348-B, at the conclusion of the period of deferment when the defendant returns to Court, he/she has the burden of proof to demonstrate by a preponderance of the evidence that he/she has complied with all Court-imposed requirements of the deferred disposition. Given those statutory requirements, what are an attorney?s ethical obligations with regard to disclosure to the District Attorney and to the Court in the following factual scenarios?

Scenario #1:

The Defendant client has pled guilty to a felony with the agreement that if he/she complies with the terms and conditions of the deferred disposition, the State will move to amend the charge, reducing it to a misdemeanor with an agreed upon sentence to be imposed by the Court.

Scenario #2:

The client has pled guilty to a misdemeanor charge with the agreement that if he/she complies with the terms and conditions of the deferred disposition, the State will file a motion with the Court to allow the defendant to withdraw the ?guilty? plea and the case will be dismissed by the State.

In each scenario what, if any, are an attorney?s ethical obligations with regard to disclosure to either the District Attorney and/or the Court in the following circumstances:

  1. The client confidentially discloses to the attorney that he/she has been convicted and/or charged with a new criminal offense that occurred in a different jurisdiction during the period of deferment?
  2. The client discloses that he/she has committed a crime during the period of deferment, but has not yet been charged?

The answer to the questions under the scenarios as presented is that counsel has no affirmative obligation to disclose to either the Court or to the District Attorney information with regard to the client?s criminal history in other jurisdictions or whether the client has or has not forborne further criminal conduct. However, counsel cannot allow the client to make false statements to the Court as part of the deferred disposition process when the attorney knows that the client?s testimony is false. If the client does make false statements in Court, then the attorney has an obligation to disavow those statements. This obligation may go so far as to require advising the Court that the client?s testimony was false. See M. R. Prof. Conduct 3.3(a)(b)(c). Even then, however, any disclosure by counsel must be carefully limited and tailored so as not to divulge confidences or secrets of the client protected from disclosure by Rule 1.6. This may mean that counsel simply informs the Court that the client?s testimony was untruthful, but is prohibited from explaining or giving further information with regard to the specific manner in which client?s testimony was untruthful.


These questions address tensions within the Maine Rules of Professional Conduct between the lawyer?s obligation not to reveal a confidence or secret of a client without informed consent, or otherwise within the limited exceptions provided by Rule 1.6(b), the lawyer?s obligations of candor toward a Tribunal, as provided by Rule 3.3, as well as the lawyer?s obligations with regard to truthfulness as provided by Rule 4.1. Rule 1.6 provides as follows:

1.6 Confidentiality of Information

  1. A lawyer shall not reveal a confidence or secret of a client unless, (i) the client gives informed consent; (ii) the lawyers reasonably believes that disclosure is authorized in order to carry out the representation; or (iii) the disclosure is permitted by paragraph (b).
  2. A lawyer may reveal a confidence or secret of a client to the extent the lawyer reasonably believes necessary. . .
  1. 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; . . .
  1. to comply with other law or a Court order.

3.3 Candor Toward the Tribunal

  1. 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. misquote to a Tribunal the language of a book, statute, ordinance, rule or decision or, with knowledge of its invalidity and without disclosing such knowledge, cite as authority, a decision that has been overruled or a statute, ordinance or rule that has been repealed or declared unconstitutional;
  3. Offer evidence that is false. If a lawyer, the lawyer's client, or 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 that the lawyer reasonably believes is false, except a lawyer in a criminal matter may not refuse to offer the testimony of a defendant, unless the lawyer knows from the defendant that such testimony is false.

  1. A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the Tribunal.
  2. The' duties' stated in paragraphs (a) and (b) 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 that will enable the Tribunal to make an informed decision, whether or not the facts are adverse.

4.1 Truthfulness in Statements to Others

In the course of representing a client a lawyer shall not knowingly:

  1. (a) make a false statement of material fact or law to a third person; or
  2. fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Additionally, important to this discussion is the definition of Tribunal as set forth in Rule 1.0(m) as follows:

  1. ?Tribunal? means a Court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity. A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party?s interests in a particular matter.

Further complicating this analysis is the fact that in the criminal setting posed by the questions, the client has a constitutionally protected right not to incriminate him or herself, and a right to the effective assistance of counsel. While it is not the place of the Professional Ethics Commission to opine on matters of substantive law, an analysis of the ethical issues cannot ignore the protections required by both the United States and Maine Constitutions. Similarly, these questions implicate the attorney?s fiduciary obligations of loyalty and confidentiality, which the Maine Supreme Judicial Court has held to exist as a matter of common law and equity, independent of any Professional Rules of Conduct.1

Although the questions deal with disclosure to the District Attorney and the Court in the conjunctive, the attorney?s obligations may well be different when dealing with a District Attorney as opposed to the Court. The District Attorney is not a Tribunal, and therefore the obligations of candor imposed by Rule 3.3 do not apply to counsel?s involvement with a District Attorney. Counsel?s involvement with a District Attorney, as opposed to representations made in and to the Court, are governed solely by Rule 4.1, requiring truthfulness, but not imposing the additional obligations of candor required by Rule 3.3.

As Comment [14] to Rule 3.3 points out, ordinarily an advocate has the limited responsibility of presenting one side of matters that a Tribunal should consider in reaching a decision; the conflict in position is expected to be presented by the opposing party. Similarly, Rule 4.1 Comment [1] states that a lawyer generally has no affirmative duty to inform an opposing party of relevant facts. This is consistent with the decision of the Task Force and of the Maine Supreme Judicial Court in adopting Rule 3.3 not to impose the Model Rule requirement that counsel advise a Tribunal of opposing authority at argument. Rather, counsel is required simply not to misquote legal authority nor cite to legal authority which has been invalidated. See Rule 3.3(a)(2). Rule 3.3 also states that a lawyer?s obligation to inform the Tribunal of all material facts applies only in an "ex parte" proceeding, where the other side is not represented. See Rule 3.3(d). That is, when the other side is not present and represented then, and only then, the lawyer has the correlative duty to make disclosures of material facts that the lawyer reasonably believes are necessary to an informed decision. See Comment [9], supra. By implication these Comments and Rule 3.3(d) imply that there is no affirmative obligation to inform the Court or the opposing side of such information.

Therefore, absent more, there is no obligation to disclose the client?s conviction, charge, or engagement in criminal activity in any of the scenarios set forth above.

That, however, does not end the inquiry. The provisions of the statute dealing with deferred disposition, 17-A M.R.S. &sect ;1348-A and § 1348-B, raise two additional concerns. First, &sect ;1348-A(3) imposes an affirmative obligation on a person who cannot meet a deferment requirement to bring a motion for modification pursuant to sub-section II. Since the deferred disposition includes a requirement that the person refrain from criminal conduct, at least the second question under each of the above scenarios raises a question of whether ¶ 3 imposes an affirmative obligation of disclosure.

Secondly, § 1348-B provides for a Court hearing as to final disposition. In sub-paragraph (1), the statute imposes upon the person charged an obligation of demonstrating by a preponderance of the evidence that the person has complied with the Court-imposed deferment requirements.

At the outset, it should be noted that based upon the statutory scheme, there is no requirement that the accused do anything other than refrain from additional criminal conduct. Accordingly, under the first and second questions under each scenario, there is no affirmative obligation that either the client or counsel disclose to anyone, whether it be the District Attorney or the Court, that there is another criminal proceeding and/or another criminal conviction.

However, if asked about any new criminal pending charges or convictions, neither counsel nor the client may give anything other than a truthful response to question(s) posed. See Board of Overseers of the Bar v. Dineen, 481 A.2d 499 (Me. 1984); State v. Gilcott, 420 A.2d 1238 (Me. 1980). Board of Overseers of the Bar v. Bertha E. Rideout, Docket No. BAR-81-10 (Decision of McKusick, C.J., dated January 7, 1982). Dineen expressly states that a lawyer may not present perjured testimony and has an affirmative obligation to prevent the presentation of perjured testimony and/or to advise the Court of the fact the testimony, once offered, is perjured. See also Rule 3.3(c). Gilcott holds that counsel has no duty to support a motion having no basis in fact and has an affirmative obligation to inform the Court of the falsity of a client?s assertions. Similarly, in Rideout, the Court disciplined counsel for standing mute while her client falsely answered the Court?s questions with regard to his prior criminal record. Accordingly, while it is theoretically possible that a client could appear and present the motion contemplated by 17-A M.R.S. § 1348-B, counsel would have to advise his or her client that if the client were to answer falsely, or to testify affirmatively in a false manner, counsel would have an affirmative obligation to advise the Court of the falsity of the client?s assertions.

If, on the other hand, the state simply moves, in accordance with § 1348-B(1-A) for a withdrawal of the plea, counsel has no obligation of disclosure as long as neither counsel nor the client are required to join in any representations with regard to the client?s criminal history and/or the client?s forbearance from engaging in criminal conduct.

If the client is asked by the Court about whether the client has engaged in criminal conduct, the only alternative available is for the client to assert his or her privilege against self-incrimination under the Fifth Amendment to the United States Constitution. Even then, there should be no discussion of whether the client has in fact engaged in any criminal activity.

This obviously poses challenges to counsel representing a party subject to a deferred disposition under the circumstances presented. Under all circumstances, counsel must advise the client that the client must be truthful, and if the client is not truthful, that the attorney has an affirmative obligation to flag or correct untruthful testimony. See Dineen, supra; Gilcott, supra, 4 M.R.S. § 806 (Attorney?s Oath). Further, if counsel anticipates that the client will be placed in the position of having to answer questions with regard to either whether there are or are not other criminal actions pending against the client or whether the client is engaged in other criminal activity, then the attorney may be well-served to advise the client to address (through defense counsel) those issues directly with the District Attorney before a hearing. The attorney must advise the client that if the client?s non-compliance with the terms of the deferment becomes known at the hearing, disclosure at that time may be significantly detrimental to the client?s interest. Similarly, counsel should advise the client that the District Attorney may well ask questions about compliance in discussions leading up to the hearing required by the statute. If counsel is asked specific questions by the District Attorney, counsel will be required to either refuse to answer or to provide accurate information. The burden is on the questioning attorney to request specific information. General, non-specific questions may be answered with general, non-specific answers. However, misrepresentations can also occur by partially true but misleading statements or omissions that are the equivalent of affirmative false statements. See M. Rules of Prof. Conduct 4.1, Comment [1]. However, until the issue of the client?s testimony is directly addressed, counsel may not, pursuant to Rule 1.6, disclose client confidences without the client?s informed consent.

The rules provide that an attorney may not counsel a client nor assist a client in engaging in a course of action which is either criminal or fraudulent. These provisions do not, however, impose upon the client an obligation to divulge past criminal conduct. Rather, the provisions simply prohibit the attorney from assisting the client in an ongoing criminal or fraudulent enterprise. Simply failing to provide information which the District Attorney?s office may believe is material is neither criminal nor fraudulent in and of itself.

This brings inquiry to the last issue. What does counsel do if the District Attorney asks whether the client has had any other criminal charges brought against him or her, or whether the client has engaged in criminal activity? Absent client consent, the attorney may not, pursuant to Rule 1.6, answer these questions. By the same token, however, counsel may not answer dishonestly. Further, the lawyer may not answer the questions in a way in which the omission to provide the information requested is misleading. See Rule 3.3 Comment [3]; Rule 4.1 Comment [1].

The Reporter?s Notes further note that Rule 4.1 prohibits both affirmative false statements as well as omissions when there is a duty to speak (emphasis added). While counsel has no duty to speak in terms of affirmatively informing the District Attorney of any of the issues raised by the questions presented, counsel may nonetheless violate the Rules if counsel gives an answer to an inquiry which omits the material facts presented and thereby misleads the other side. Rather, counsel?s only course of action is to simply refuse to answer the questions. See Board of Overseers of the Bar v. Traill, Maine Supreme Judicial Court, Docket No. BAR-09-04, Decision dated October 16, 2009, (Mead, J.).

1We have held that that an ?attorney and client necessarily share a fiduciary relationship of the highest confidence.? Anderson v. Neal, 428 A.2d 1189, 1191 (Me. 1981). In Peaslee v. Pedco, Inc., 388 A.2d 103 (Me. 1978), an attorney?s breach of the duty of loyalty supported an action for rescission of a land contract. The fiduciary obligations of an attorney are derived from common law and equity independent of professional rules of conduct. 2 Ronald E. Mallen & Jeffrey M. Smith Legal Malpractice, § 14.1 (4th ed. 1996). ?[T]he basic fiduciary obligations are two-fold: undivided loyalty and confidentiality. . . . These common-law duties predate and exist despite independent, codified ethical standards.? Id. at 227-28. ?A lawyer who acts adversely to a former client can be sued for the financial consequences of disloyalty, which primarily is for abuse of confidences.? Id. § 16.23 at 483-4.

Sargent v. Buckley, 1997 ME 159 ¶ 9.

Enduring Ethics Opinion