Reporting to Law Enforcement Authorities Impounded Information Learned From Criminal Defense Attorney

August 16, 2007

CJE Opinion No. 2007-7

You have requested an opinion on whether you are required to, or permitted to, disclose to law enforcement authorities certain information that you learned from a defense attorney in a criminal case when hearing his mandatory ex parte motion to withdraw from representation of his client.

You have provided the following facts.  In a criminal case in your court, the defense counsel filed a motion to withdraw before trial.  The hearing on the motion was an ex parte sidebar conference, which was recorded and sealed.  The basis for counsel's motion was that he believed that his client was going to insist on testifying at the trial and was going to commit perjury.  Additionally, counsel indicated that he believed that his client had engaged in obstruction of justice in connection with a key prosecution witness, whom the prosecution could no longer locate.  To the best of counsel's knowledge, the prosecution and police do not know of his client's involvement in the unavailability of the witness, nor do they have any apparent means of discovering this obstruction of justice.  You allowed the motion to withdraw and continued the case.

Defense counsel acted properly in disclosing this information pursuant to Massachusetts Rules of Professional Conduct 3.3 (a) (2) and (e).  Rule 3.3, entitled "Candor Toward the Tribunal," provides in relevant part:

"(a) A lawyer shall not knowingly:

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"(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, except as provided in Rule 3.3 (e);

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"(e) In a criminal case, defense counsel who knows that the defendant, the client, intends to testify falsely may not aid the client in constructing false testimony, and has a duty strongly to discourage the client from testifying falsely, advising that such a course is unlawful, will have substantial adverse consequences, and should not be followed. . . .  [I]f the lawyer discovers this intention before trial, the lawyer shall seek to withdraw from the representation, requesting any required permission.  Disclosure of privileged or prejudicial information shall be made only to the extent necessary to effect the withdrawal.  If disclosure of privileged or prejudicial information is necessary, the lawyer shall make an application to withdraw ex parte to a judge other than the judge who will preside at the trial and shall seek to be heard in camera and have the record of the proceeding, except for an order granting leave to withdraw, impounded."

The relevant sections of the Code of Judicial Conduct are Section 3 B (7) (e) and Section 3 B (11).  Section 3 B (7) (e) provides:

"(7) A judge shall accord to every person who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.  A judge shall not initiate, permit, or consider any ex parte communication concerning a pending or impending proceeding, except that:

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"(e) A judge may initiate, permit, or consider any ex parte communication when authorized by law to do so."

Section 3 B (11) provides:

"(11) A judge shall not disclose or use, for any purpose unrelated to judicial duties, information acquired in a judicial capacity that by law is not available to the public."

Both the Massachusetts Rules of Professional Conduct and the Code of Judicial Conduct are Supreme Judicial Court rules.  There is no presumption that either has superior authority over the other.  They must be read together as a whole.

The important and instructive language for this situation is contained in the Rules of Professional Conduct.  The lawyer is instructed first to attempt to dissuade the client from testifying falsely, and, if that fails, not to unnecessarily disclose the client confidences but, if disclosure is necessary in order to withdraw, which is mandatory, to disclose only so much as is needed to convince a judge, not the trial judge, in a closed ex parte hearing, the contents of which remain sealed.  The level of specificity in the rules is necessary to protect the attorney-client privilege and to ensure the due process requirements of the Constitution and the Bill of Rights.  In that regard, the privilege is strong, so strong that it even survives the client's death.  See generally In the Matter of a John Doe Grand Jury Investigation, 408 Mass. 480 (1990).  "Unless the crime-fraud exception applies, the attorney-client privilege may not be invaded, even where the communication concerns possible future criminal conduct."  In re Grand Jury Investigation, 437 Mass 340, 357 (2002).  The crime-fraud exception, in turn, "applies only if the client or prospective client seeks advice or assistance in furtherance of criminal conduct," Purcell v. District Attorney for the Suffolk District, 424 Mass. 109, 115 (1997), and nothing in your request to the committee suggests that to be the case here.  Under those circumstances, the protections provided by the rules and the decided cases would be meaningless if the judge who heard the ex parte motion disclosed the substance to the prosecution or law enforcement.

As a general rule, ex parte communications are not permitted, and where they are permitted a judge has an obligation to inform the other parties as soon as possible.  The exception provided by the Code of Judicial Conduct, Section 3 B (7) (e), applies directly to the facts at hand.  This particular ex parte communication is not only authorized, but also required by law.  Because the record is sealed, the information is not available to the public.  Since the rules require that a different judge hear the trial you have no further judicial duties with regard to this case.

According to the facts as you have described them, you are not permitted to disclose the information you received during the ex parte motion to withdraw and you must not hear the trial.