June 16, 2021 – It happens: You spot an error made by the court in your client’s case. Whether or not that error helps your client, must you inform the court of the error?

Question

I represent a criminal defendant charged with two misdemeanors. My client has agreed to enter pleas of no contest to both charges, after which the state will recommend two consecutive terms of six months, for a total of 12 months in jail.

Although the court indicated acceptance of the agreement, it imposed two concurrent sentences, for a total of six months. The prosecutor, who was reviewing their file, did not appear to notice the court’s error. My client clearly and unequivocally agreed to the deal involving two consecutive six-month terms.

Do I have an obligation to inform the court of this error?

Answer

This is the situation considered in the recently revised Wisconsin Ethics Opinion E-84-7, which also considered whether there is any obligation to correct similar errors made by court staff or opposing parties.

Most lawyers rightly believe that, if an opposing party makes a mistake, it is appropriate to capitalize on that mistake.

Heightened Duties to Courts

Most lawyers also rightly realize that they have heightened duties to courts. One of the primary sources of duties to tribunals is SCR 20:3.3 (Candor toward the tribunal) imposes on lawyers the following duties, as summarized by E-84-7:

(1) False statements – A lawyer may not knowingly make a false statement of fact or law to a tribunal or fail to correct a previously made false statement of material fact or law.

(2) False evidence – A lawyer may not knowingly present false evidence to a tribunal.

(3) Remedial duties – A lawyer who subsequently learns the lawyer, the lawyer’s client or a witness called by the lawyer has offered material false evidence, or that the client has, is or intends to engage in criminal or fraudulent conduct related to the proceeding must take remedial action. (footnotes omitted)

ABA Comment [3] notes that “[t]here are circumstances where failure to make a disclosure is the equivalent of an affirmative misrepresentation.”

Neither the rule nor commentary provide clarification of what these “circumstances” might be.

Is It Misrepresentation? It Depends

So, the question becomes whether the failure to correct the obvious and material error of the court is tantamount to a misrepresentation by material omission.

E-84-7 opines that it is not. In concluding that a lawyer has no obligation to correct the error of an opposing party, court staff, or the court, the opinion states:

The Committee does not believe any of the scenarios presented are the type of “circumstance where failure to make a disclosure is the equivalent of an affirmative misrepresentation.” Model Rule 3.3 cmt. ¶3. Consequently, the Committee believes that the lawyer is not obligated to take action to correct the errors and that not doing so does not violate SCR 20:3.3(a)(1). In each scenario all relevant facts are available in public records. Neither the defense lawyer nor the client played any role in the creation or concealment of the mistakes. The lawyer’s knowledge of the mistakes is information relating to the representation and is protected by SCR 20:1.6. Disclosure is not mandatory under SCR 20:1.6 and if made could operate to the detriment of the client.

There certainly are situations where lawyers may be, and are, disciplined for engaging in misrepresentation by material omission, and many cases are discussed on the opinion.¹

The key distinction here is that neither the lawyer nor the client had any role in creating or concealing the error.²

There are Consequences

While there is no duty under the disciplinary rules to correct the court’s error, the lawyer does have an obligation to discuss with the client the possible consequences of permitting the court’s error to stand:

Thus, although the Committee believes there is no ethical duty to notify others of an error that benefits the client in the scenarios presented it also believes that the lawyer has a duty to consult with the client to explain the potential risks and benefits of standing silent or correcting the error.

First, the benefit to the client may be fleeting. Given how case data is entered, accessed, and managed in most communities, discovery of the mistake in all of the scenarios may be likely or even inevitable. This is particularly true if the client has or may have other active cases in the same jurisdiction where access to their court records by a variety of system actors can be expected.

If the lawyer does nothing and the mistake is discovered, others in the local legal community may view the client and the lawyer as less than honest, and may be less inclined to give them the benefit of the doubt in other matters, even if no ethics rules was violated. For both the client, the lawyer, and the lawyer’s future clients the risks, and costs, of their inaction may be real and substantial.

There is also a possibility that the mistake will remain undiscovered and benefit the client, or that following discovery the defendant might successfully retain the unintended benefit. This possibility could lead the client to instruct his lawyer to remain silent, which could present a conflict for the lawyer who may wish to not risk harm to her reputation and other current and future clients. SCR 20:1.7(a)(2). The Committee believes issues involved require a thorough and candid discussion. The options should be discussed in detail and the final decision of the client is documented in the file.

More to Come

The State Bar’s Standing Committee on Professional Ethics is currently working on several new and substantially revised opinions that will be discussed in future columns, so stay tuned.

Endnotes

¹ For an example from Wisconsin, see In re Sieg, 183 Wis. 2d 704, 515 N.W.2d 694 (1994) (attorney’s failure to inform court that his client has used his sibling’s identity violated SCR 20:3.3).

² Another recently revised opinion, E-86-6, discusses defense counsel’s responsibilities where the state is unaware of a defendant’s prior OWI convictions and consequently the current OWI charge does not accurately reflect the defendant’s prior record.