Ethics Opinions

Opinion No. 78-9

Summary: Where the attorney for a juvenile in a pending juvenile case in a district or superior court learns of the existence of other juvenile delinquency cases against the client (pending or adjudicated) which are not known to the probation officer, the attorney may not properly represent to the court (directly or indirectly, or by tacit assent if the court seeks the attorney's confirmation) that there are no such cases, other than those known to the probation officer. If the existence of these earlier cases becomes relevant (for instance, at disposition) and the attorney knows that the client has represented to the court, directly or through the probation officer, that there are no other such cases, the attorney must call upon the client to rectify the fraud, and if the client refuses to do so, the attorney has an affirmative duty to reveal the true facts as to the other cases to the court.

Facts: An attorney who represents juveniles in two cases has learned of her own knowledge in one of them (because she then represented the juvenile), or from the juvenile's mother in the other, of earlier pending or adjudicated cases, not known to the probation officer in the subsequent cases (one of which is a transfer hearing and the other of which is about to be tried in superior court after transfer and indictment as an adult). The attorney asks whether she has an affirmative duty to disclose the existence of these earlier cases, if and when their existence becomes relevant.

Discussion: Since the attorney did not receive the information from the client in a confidential communication in either case, it is not a confidence protected by the attorney-client privilege under applicable law under DR 4-101(A). But since the information was "gained in the professional relationship ... the disclosure of which ... would be likely to be detrimental to the client," it is a secret which under DR 4-101(B)(1) the lawyer should not knowingly reveal without the client's consent, except "when permitted under Disciplinary Rules or required by law or court order" under DR 4-101(C).
If the probation officer's failure to learn of the earlier cases is not due to the client's misrepresentations to him (and thus to the court), and if the attorney has made no misrepresentations on the matter, the attorney is under no obligation to correct the record; indeed, it would be a violation of DR 4-101(B)(1) to do so without the consent of the client.
But the Disciplinary Rules do put some obligations upon lawyers with regard to disclosure of confidences and secrets of their clients. DR 7-102(A)(5) provides: "In his representation of a client, a lawyer shall not: (5) Knowingly make a false statement of law or fact." Clearly the attorney could not properly represent to the court (directly or indirectly, or by tacit assent if the court looks to her for confirmation) that there were no pending or adjudicated cases, other than those listed by the probation officer. Nor could the attorney apply for probation or suspension of sentence on the ground that there were no other pending or adjudicated cases. See ABA Formal Opinion 156 (1936) cited in our own Opinion 77-12.
The committee wishes to point out that a judge should not ask the attorney to state her personal knowledge with regard to the correctness of the record as certified by the probation officer. Indeed, for the attorney to do so, even in response to a question from the court, would violate DR 7-106(C)(3), which provides, "In appearing in his professional capacity before a tribunal, a lawyer shall not: ... (3) Assert his personal knowledge of the facts in issue, except when testifying as a witness."
In one situation, the Disciplinary Rules place an affirmative obligation upon a lawyer to reveal a confidence or secret without the client's consent, DR 7-102(B)(1), if the lawyer learns that the client "has, in the course of the representation, perpetrated a fraud" upon a court. The lawyer must promptly call upon the client to rectify the fraud, if it becomes relevant, and if the client has represented to the court, directly or through the probation officer, that there were no other pending or adjudicated cases, the attorney must reveal the true facts to the court if the client does not do so, if and when the number of such earlier cases becomes relevant to any issue before the court, either in the transfer hearing of the first case, or in the second case in the superior court after indictment and transfer. But so long as the number of such earlier cases is not relevant to any issue before the court (it would normally not be relevant at the trial of the issue of delinquency or guilt prior to disposition), there appears to be no actual "fraud" upon the court, and accordingly there would be no occasion for the application of DR 7-102(B)(1) to force the lawyer to reveal the true facts.


Permission to publish granted by the Board of Delegates on June 21, 1978.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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