Ethics Opinion 213

Defense Counsel’s Obligation to Inform Court of Adverse Evidence

Applicable Code

• DR 4-101(B)(1) (Nondisclosure of Confidence or Secret.)
• DR 7-102(A)(4) (Knowing Use of False Evidence.)
• DR 7-102(A)(5) (Knowing False Statement of Fact.)
• DR 7-102(B)(2) (Revealing Fraud Upon Tribunal by Non-client.)

Applicable Rules

• Rule 1.6 (Confidentiality of Information.)
• Rule 3.3 (Candor Toward the Tribunal.)

Inquiry

This inquiry arises out of a post-trial ineffective assistance of counsel proceeding in the Superior Court. The inquirer argued in that proceeding that his predecessor’s representation of a criminal defendant was ineffective because predecessor counsel failed to secure enforceable process upon a witness (“Witness B”) whose testimony allegedly would have exculpated the defendant. Predecessor counsel had located another witness (“Witness A”) who advised him that she had heard Witness B confess to the crime in question. Predecessor counsel spoke to Witness B, who promised to be present for trial. Witness B was mailed a subpoena. However, it is not clear whether Witness B was properly served with the subpoena, and he did not appear for trial.

In supporting the ineffective assistance of counsel petition, the inquirer submitted an affidavit from Witness A that recounted the inculpatory statement Witness B allegedly made in her presence.¹ The petition argued, inter alia, that the failure to secure enforceable service of a subpoena upon Witness B was prejudicial to the client and rendered predecessor counsel’s assistance ineffective.

Some months after the court took the matter under advisement, the inquirer located Witness B, who denied making any statements of any kind to Witness A. The inquirer asks whether he has an ethical obligation to inform the court that Witness B denies making the inculpatory statement.

Discussion

Consideration of this inquiry must start with DR 4-101, “Preservation of confidences and secrets of a client.” The information that the inquirer learned from his interview of Witness B—that Witness B denies making inculpatory statements to Witness A—comes within the definition of a “secret.” DR 4-101(A) (a secret is information, other than confidence, that is “gained in the professional relationship . . . the disclosure of which . . . would be likely to be detrimental to the client.²” Thus, unless the disclosure of the secret is “permitted under DR 4-101(C),” the inquirer may not reveal the information he learned from Witness B. DR 4-101(B)(1).

The only provision of DR 4-101(C) that would appear relevant to this inquiry is subparagraph (2), which allows disclosure of confidences and secrets “when permitted under Disciplinary Rules or required by law or court order.” Under this standard, the Committee concludes that the inquirer may not reveal his client’s secret.³

1. DR 7-102(A)(4) (Knowing Use of False Evidence)

It is true that the inquirer now possesses information that conflicts with the sworn statement of Witness A, a statement that the inquirer has presented to the court. However, inquirer states that he submitted Witness A’s statement to the court before he located and interviewed Witness B. Thus, on the facts presented, there appears to be no violation of DR 7-102(A)(4), because the element of counsel’s prior knowledge of any falsity is absent.

The simple existence of conflicting witness statements does not by itself rise to the level of “knowledge” that one such statement is false. See Butler v. United States, 414 A.2d 844 at 850 (D.C. App. 1979) and the cases cited therein. In any event, when the inquirer presented Witness A’s affidavit to the court, he had no knowledge that Witness B would make a contrary statement. The Committee therefore cannot conclude that, in submitting Witness A’s affidavit, the inquirer knowingly submitted a false statement.

2. DR 7-102(A)(5) (Knowing False Statement of Fact)

Similarly, under the facts presented, the inquirer did not knowingly make false statements of fact in his petition, to the extent that he argued that Witness B would have exculpated the defendant had the witness been required to appear at trial. DR 7-102(A)(5). The element of knowledge of any falsity at the time the statement may have been made to the court is lacking.⁴

3. DR 7-102(B)(2) (Revealing Fraud Upon a Tribunal by a Non-client)

Finally, there is the question whether DR 7-102(B)(2) requires counsel to reveal to the court the conflict between the statements of Witness A and Witness B, on the grounds that Witness A’s statement amounts to a “fraud upon a tribunal” by a non-client. The Committee concludes that DR 7-102(B)(2) does not mandate disclosure under these facts.

The obligation to disclose non-client fraud is predicated upon a lawyer’s having received “information clearly establishing” the fraud. See In re Grievance Committee of U.S. District Court, 847 F.2d 57, 62-63 (2d Cir. 1988) (interpreting DR 7-102(B) as requiring “actual knowledge of a fraud.”) The Committee believes that, standing alone, the conflicting statements described in the inquiry do not clearly establish that Witness A’s statement is false.

Conclusion

Under the facts presented, the inquirer must preserve the confidences and secrets of his client. The inquirer therefore is not ethically obligated to disclose to the Court the information he learned from his interview of Witness B. Indeed, such disclosure at present would be prohibited.⁵

However, the inquirer must exercise care in any future dealings with the court in this matter. Given his present knowledge that Witness B denies making inculpatory statements to Witness A, the inquirer should insure that any future representations to the court regarding what Witness B’s testimony would have been do not run afoul of the inquirer’s ethical obligations. See In re Austern, 524 A.2d 680 (D.C. App. 1987).

Inquiry No. 89-11-41
Adopted: June 19, 1990

1. Although Witness A testified at the criminal trial, the inquirer advises that testimony regarding Witness B’s statement was not elicited, because Witness A had not been “asked the proper questions.” The Committee offers no opinion regarding this assertion.
2. See also Comment 6 to Rule 1.6 of the D.C. Rules of Professional Conduct, which provides that the prohibition against disclosure of secrets “exists without regard to the nature or source of the information or the fact that others share the knowledge.”
3. This opinion is limited to consideration of disclosures “permitted under Disciplinary Rules.” The inquiry makes no reference to a court order mandating disclosure of the secret, so the Committee presumes no such order exists. See Opinion 180. Whether the inquirer was or is “required by law” to disclose the information in question is a legal issue that is beyond the authority of the Committee to decide. Id. at n.1.
4. Nonetheless, as noted below, the inquirer must take care to avoid knowingly making false statements in the future. 5. The Committee concludes that the result reached in this opinion would be the same under the Rules of Professional Conduct that will go into effect in the District of Columbia on January 1, 1991. See Rules 1.6 (Confidentiality of Information) and 3.3 (Candor Toward the Tribunal).