Jan. 16, 2019 – If a prosecutor or the court has incorrect information about my client’s prior convictions, but correcting that information may be damaging to the defendant, do I have a duty to make the court aware of the correct information?

Question

I represent a client charged with a second operating while intoxicated (OWI) offense. When I met with the client, however, I learned that the client in fact had two prior OWI convictions, so the client should appropriately be charged with a third-offense OWI rather than second.

It is clear that the prosecutor is unaware of the correct number of prior convictions, and the matter is set for a plea and sentencing on a second OWI charge.

Do I have an obligation to make the court aware of the correct number of prior OWI convictions?

Answer

This question was directly addressed in the recently revised and reissued Wisconsin Ethics Opinion E-86-6, originally issued in 1986.

The State Bar’s Ethics Committee decided to revise the opinion so that it conforms to the current Rules of Professional Conduct, and also because this opinion is frequently relied upon in providing guidance to lawyers on the ethics hotline. While the opinion is expanded and modernized, its conclusions remain the same.

The opinion begins by noting lawyers’ duty of candor to the tribunal under SCR 20:3.3 and discusses the lawyer’s responsibility in four situations:

1. the court may demonstrate an incorrect understanding of the facts to the advantage of the defendant;

2. opposing counsel may misstate the relevant facts to the advantage of the defendant;

3. the court may directly ask counsel about the relevant facts, or,

4. the court may directly ask the defendant about the relevant facts.

The opinions states:

In the first two situations the lawyer has no ethical duty to proactively correct the mistaken beliefs of the court or prosecutor.

In Wisconsin, the number of prior OWI convictions controls the potential penalty for the most recent offense. Defense counsel has no obligation to assist the state in proving prior convictions, either by directly offering proof of prior convictions or correcting an inaccurate recitation of prior convictions by the prosecution. Lawyers generally have no duty to assist opposing parties by making them aware of facts that may assist them but damage the lawyer’s client.

(footnotes omitted)

These conclusions are straightforward. Most lawyers are aware that there is generally no duty to correct opposing counsels mistakes of fact and, because the prior convictions must be proven by the prosecution, there is no obligation for defense counsel to provide that information to the court.

The third and fourth situations are more difficult. The opinion addresses these as follows:

In the third situation, counsel may not knowingly report an incorrect number of prior OWI convictions. SCR 20:3.3(a)(1). This does not mean counsel must provide information adverse to the client. Counsel may respectfully decline to answer, suggest that the court’s inquiry is best directed to the prosecutor, or seek her client’s permission to provide the information.

The Committee’s response to the fourth situation, where the court directly questions the client, is informed by the dual principles that the client should not answer falsely but also that the client is not obliged to provide information to assist the prosecution.

In all cases counsel should prepare the client in advance of a court hearing. Counsel should normally advise the client that counsel, and not the client, should respond to questions from the court or opponent. Thus, if the court directly engages the client, the client should defer to counsel to respond. If this is not possible, the client should be admonished to answer truthfully if any answer is given. SCRs 20:1.2(d), 20:8.4(a). The Committee believes that a false statement by the client about the number of prior OWI convictions could require remedial action even if harmful to the client. SCR 20:3.3(b).

(footnotes omitted)

While neither defense counsel nor the defendant have any affirmative obligation to provide the court or prosecution with information that may be damaging to the defendant, neither defense counsel nor the defendant may make false statements of fact to the court.

This may prove difficult when the court directly asks either defense counsel or the defendant about the number of prior convictions, but this highlights the importance of preparation for the lawyer and client in this situation.

In consideration of this potential difficulty, the final paragraph expresses the hope that lawyers and the court understand and respect the role of defense counsel in such a situation:

In summary, in a criminal proceeding a defense lawyer is not obligated to correct an error made by the court or prosecuting attorney but has a duty not to provide false information to the court. Courts and prosecuting attorneys, in turn, should honor the obligations of defense attorneys to protect the client’s confidential information and put the state to its proof.

While defense counsel has no affirmative obligation to disclose prior convictions, any response to questioning by the court must be truthful.

All Wisconsin ethics opinions are found in the For Members/Ethics page on WisBar.org.