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Commonwealth of Massachusetts

April 1999


DEE-fense: Ethical Obligations of Criminal Defense Counsel


Arnold R. Rosenfeld

Bar Counsel

This month’s Bar Overseer is the second part of a two-part series on changes in the Massachusetts Rules of Professional Conduct relating to prosecution and defense. This column deals with the ethical issues of the criminal defense lawyer.

Effective January 1999, the Supreme Judicial Court issued an order formally eliminating S.J.C. Rule 3:08 entitled "Disciplinary Rules Applicable to Practice as a Prosecutor or as a Defense Counsel" and commonly known as the Prosecution and Defense Functions (PFs and DFs). In its place, the Court adopted some "housekeeping" changes. The adoption of the Massachusetts Rules of Professional Conduct in January 1998, together with these recent housekeeping changes, has resulted in many changes affecting both prosecutors and defense counsel in criminal cases.

For defense counsel, the most important differences arise out of the interaction between Mass. R. Prof. C. 1.6, Confidentiality of Information, and Mass. R. Prof. C. 3.3, Candor Toward the Tribunal. Under the new rules, candor to the tribunal clearly has been given priority over the duty of confidentiality to the client. Under the old Disciplinary Rules, the duty of candor was more ambiguous in certain situations where there was a conflict with the duties of confiedentiality. This article will discuss how the transition from the former Disciplinary Rules to the new Rules of Professional Conduct represents a fundamentally different approach in the professional responsibility duties of criminal defense counsel.

On the one hand, because it generally protects all "confidential information relation to the representation," Mass. R. Prof. C. 1.6 in fact contains a broader definition of what constitutes confidential information than existed under former DR 4-101. See Comment 5 to Mass. R. Prof. C. 1.6. On the other hand, however, because the exceptions under the new Rules are very different from those appearing in DR 4-101, the duty of confidentiality is narrower than it was previously.

Rule 1.6 contains six permissive exceptions to the duty of confidentiality, some similar to those in former DR 4-101 and others that both narrow and broaden the lawyer’s discretion. The most important change, in Rule 1.6(b)(1), is that the lawyer is now permitted to disclose confidential information to prevent the client’s commission of both criminal and fraudulent acts, not just criminal acts, but only if the lawyer reasonably believes the criminal or fraudulent act is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of another or to prevent the wrongful execution or incarceration of another. Former DR 4-101 permitted the lawyer to reveal the client’s intention to commit any crime, no matter how minor.

Another new permissive exception, Rule 1.6(b)(3), permits the lawyer to reveal confidential information to the extent necessary to rectify client fraud in which the lawyer’s services have been used, subject to Rule 3.3.(e), discussed below.

Unlike DR 4-101, which contained permissive exceptions only, the new rules contains two mandatory exceptions to the duty of confidentiality. First and most critically, pursuant to Mass. R. Prof. C. 3.3(a)(2), a lawyer must disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client. This is a major change from DR 7-102(B)(1), which, in the same circumstances, allowed for an exception to reporting the fraud when the information was protected as a privileged communication. There is no such exception under Mass. R. Prof. C. 3.3(a)(2). Second (and less likely to present problems in the ordinary course), pursuant to Mass. R. Prof. C. 4.1 (b), a lawyer must disclose a material fact to a third person to avoid assisting in a criminal or fraudulent act by a client, unless disclosure is prohibited by Mass. R. Prof. C. 1.6. However, "assisting" under Rule 4.1 (but not under Rule 3.3) requires a level of assistance by the lawyer that would render the lawyer liable as an aider or abettor under criminal law or as a joint tortfeasor under tort and agency law.

Mass. R. Prof. C. 3.3 places additional burdens on a criminal defense lawyer. Under Rule 3.3(a)(1), a lawyer cannot knowingly make a false statement of material fact or law to a tribunal. Under Rule 3.3(a)(4), a lawyer cannot offer evidence that the lawyer knows to be false. These, of course, are not new obligations, However, if lawyer comes to know that false evidence has been offered or false testimony has been given, the lawyer now is required by Rule 3.3 to take remedial measures and, under Rule 3.3(b), this is so even if compliance requires disclosure of information otherwise protected by Rule 1.6. Thus, for example, if a client gives a false name to the court and the lawyer at the time of arraignment, and the client subsequently discloses his false statement to the lawyer, the lawyer cannot continue to represent that client unless the false statement is corrected. However, if the client will not correct the false statement, then the lawyer must reveal the false statement to the court, even if the lawyer withdraws from further representation.

Mass. R. Prof. C. 3.3(e), dealing with client perjury in criminal cases, represents an extension of the doctrine previously set out in the Standards Relating to the Defense Function, DF 13(b), and is a rule that, although rarely used, should be understood by criminal defense lawyers. First, this rule is limited to criminal cases and only to the proposed or actual testimony of a defendant. If a witness other than the defendant either intends to or does testify falsely, and the lawyer knows of its falsity or learns of its falsity, then Rule 3.3 (a)(4) requires the lawyer to take remedial measures which would include, at the minimum, calling upon the witness to rectify the false testimony, and if the witness refuses to do so, revealing the false testimony to the court. Former DF 13(b) required a lawyer who knew that a client intended to testify falsely to remonstrate with the client not to do so, and if the client refused, then to file an ex parte motion seeking permission to withdraw from representation. Rule 3.3(e) includes these provisions, but adds direction as to what obligations a lawyer has if the permission to withdraw is denied or the lawyer learns only during the trial or knows that the client has testified falsely at trial. Again, the lawyer is mandated to call upon the client to rectify the false testimony, but failing that effort, the lawyer cannot either assist the client in presenting the false testimony or reveal the false testimony. These obligations continue until the end of the case, including appeals.

There are several other rules that are of special concern to criminal defense counsel. For example, a criminal defense attorney is under an ethical obligation to communicate any plea offers to his or her client (Mass. R. Prof. C. 1.4) and to abide by the client’s decision, after consultation with the lawyer, as to the plea to be entered, as to whether to waive jury trial, and as to whether the client will testify (Mass. R. Prof. C. 1.2(a)). The rules as to prohibited trial conduct that previously were set out in various provisions of Canon 7 and the Standards Relating to the Defense Function (S.J.C. Rule 3:08) now are consolidated and clarified in Mass. R. Prof. C. 3.4. The duties of zealous advocacy have been maintained and now are part of Mass. R. Prof. C. 1.3 and Mass. R. Prof. C. 3.1. Massachusetts’ unique requirements prohibiting communications with jurors after a trial, previously DR 7-108(D), now can be found in Mass. R. Prof. C. 3.5(d). Criminal defense attorneys also are bound, as are prosecutors, by the trial publicity provisions of Mass. R. Prof. C. 3.6. (See Bar Overseer article in the December Lawyer’s Journal for a more detailed description of the rules governing public discussion of pending cases)

Mass. R. Prof. C. 4.2 also poses special problems for a criminal defense attorney. First, lawyers who are retained or assigned to represent an accused should understand under what circumstances prosecutors may speak with their clients pursuant to this rule. This is particularly true of situations where the lawyer represents a corporate entity and certain of its employees and of situations where the government may seek to interview a client who has not been indicted or identified as a target of the investigation. Second, criminal defense attorneys should be aware of their duty and right to interview witnesses in criminal proceedings and of the fact that prosecutors do not represent witnesses and therefore cannot grant or deny a criminal defense attorney access to a witness.

Criminal defense attorneys must be particularly careful under Mass. R. Prof. C. 1.2 (d) not to counsel a client to engage, or assist a client, in conduct that is criminal or fraudulent. However (and obviously), a criminal defense lawyer, as any other lawyer, may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.

Finally, criminal defense attorneys should be aware that they have ethical duties beyond what is described above, such as the duty not to violate the conflict of interest provisions (see DF 6), that previously existed in the Defense Function and remain in effect under the new rules.


When this column is published, I will have left the Office of Bar Counsel. Thus, this is my last Bar Overseer column as Bar Counsel, although I am sure these columns will continue. I would like to express my personal appreciation to Camille Sarrouf, the President of the Massachusetts Bar Association, who first suggested to us the idea of the Office of Bar Counsel producing this column, and to Bill Litant, the Editor-in-Chief of the Lawyers Journal, who has been so very helpful in assisting us in the preparation and editing of these pieces. (Arnold R. Rosenfeld)

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