Can a criminal defense lawyer tell the court that privileged information shows the defendant is innocent, when that information is not admissible evidence?

Plain-English summary

A witness in a criminal forgery trial, represented by the public defender, intended to assert the Fifth Amendment. The public defender told the judge that he felt "ethically bound" to say he had information that the defendant on trial was not guilty, while acknowledging that the Code of Ethics did not allow him to reveal the information or its source, and that there was no way the court could consider it as evidence. The committee was asked what a lawyer's ethical obligation is when a client-witness will assert the Fifth Amendment but the lawyer believes he has learned in privileged communications that the defendant is innocent.

The committee concluded the public defender breached his duty to keep his client's confidence. Under former DR 4-101, a lawyer may not reveal a confidence or secret of a client, and the opinion noted the duty to guard client secrets is broader than the attorney-client privilege itself. It read DR 4-101 together with DR 7-102(b)(1), which requires disclosure of a client's fraud on a tribunal except when the information is privileged, and found there was no danger of fraud here: because the client had taken the Fifth and would not testify, he could not misinform the court.

The committee found the disclosure also breached the lawyer's duty to the court under DR 7-106(c). By his own admission the public defender had no admissible evidence of innocence, so his statement asserted a personal opinion on the accused's guilt or innocence and alluded to matter that would not be supported by admissible evidence, interfering with the judicial fact-finding process. The committee observed that the lawyer's sense of "conscience" should not have taken precedence over his ethical obligations, and that here there was no real conflict between duty to client and duty to court because the client had elected not to testify.

Currency note

This opinion was issued in January 1984, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rule 3.4(e)), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer tell the judge that privileged information proves someone is innocent?

A: The opinion concluded no; revealing inadmissible privileged information to influence the court breached former DR 4-101's duty of confidentiality, which the committee said is broader than the attorney-client privilege.

Q: Doesn't the duty to disclose fraud on a tribunal require speaking up?

A: Not here. The committee read DR 7-102(b)(1) to except privileged information, and found no fraud risk because the client had asserted the Fifth Amendment and would not testify, so he could not misinform the court.

Q: What was wrong with the lawyer offering his belief about innocence?

A: Per the opinion, with no admissible evidence the statement asserted a personal opinion on the accused's innocence and alluded to matter not supported by evidence, violating DR 7-106(c) and interfering with the court's fact-finding.

Background and rules framework

The opinion applied former Illinois Code DR 4-101 (preservation of confidences and secrets), DR 7-102(b)(1) (a lawyer who learns of a client's fraud on a tribunal must act, except where the information is privileged), and DR 7-106(c)(1) and (c)(4) (a lawyer before a tribunal may not allude to matter not supported by admissible evidence or assert a personal opinion on an accused's guilt or innocence). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 3.4(e) (a lawyer shall not state a personal opinion as to an accused's guilt or innocence), corresponding to ABA Model Rule 3.4(e), with the confidentiality and candor duties now in Rules 1.6 and 3.3.

Citations and references

Rules of Professional Conduct:

• Illinois Code DR 4-101, DR 7-102(b)(1), DR 7-106(c)(1), (c)(4) (applied in the opinion)
• Illinois RPC 3.4(e) (2010 equivalent per the Board's affirmation); Rules 1.6 and 3.3 (confidentiality and candor)
• MR 1.6 (confidentiality); MR 3.3 (candor to the tribunal); MR 3.4(e) (personal opinion before a tribunal)

Cases:

• People v. Curry, 1 Ill. App. 3d 87, 272 N.E.2d 669 (1971), duty to guard client secrets broader than the privilege
• Skokie Gold Standard Liquors v. Joseph E. Seagram & Sons, 116 Ill. App. 3d 1043, 452 N.E.2d 804 (1983)

Other opinions cited:

• ABA Informal Opinion 869; ABA Opinions 216, 268, 287: preservation of confidence as the superior obligation
• ISBA Opinions 533 and 564: lawyer may not report a client's false affidavit or prior fraud to the court

See also

• ISBA Ethics Op. 13-05: Client Submitting False Evidence
• ISBA Ethics Op. 16-02: Withholding Controlling Authority
• ISBA Ethics Op. 17-01: Disclosing Confidences to Prevent Harm

Source

• Landing page: https://www.isba.org/ethics/opinions/8402