Must a North Carolina lawyer tell the court when a clerk's error wrongly dismissed the client's charges?

Plain-English summary

A lawyer negotiated a plea agreement under which all but two of his jailed client's charges would be dismissed. Before the plea was entered, the case was continued, but the lawyer then learned the client had been released because a clerk's error had voluntarily dismissed all of the charges, a result that did not reflect the plea. The inquiry asks whether the lawyer must inform the clerk of court of the error.

The opinion answers yes. It grounds the duty in the lawyer's role as an officer of the legal system (Rule 0.1) and in Rule 8.4(d), which makes it misconduct to engage in conduct prejudicial to the administration of justice, and it points to Comment [2] to Rule 3.3, on lawyers' special duty as officers of the court to avoid conduct that undermines the integrity of the adjudicative process. Drawing the analogy to Rule 3.3's duty to disclose a client's false testimony even when disclosure has grave consequences for the client, the opinion states that where a lawyer's duty to the client conflicts with the lawyer's duties as an officer of the court, the duty to the court must prevail.

The opinion distinguishes 98 FEO 5, which held that a defense lawyer has no duty to inform the court of an inaccurate driving record presented by the prosecutor. There, both advocates were present and each was expected to present evidence and carry a burden of proof, and the defense lawyer was not required to volunteer adverse facts the prosecutor failed to bring forward. Here, by contrast, the lawyer knows the charges were dismissed in error and that the negotiated plea was not carried out, so the lawyer must inform the court or clerk. The opinion cites, in accord, Wisconsin Formal Ethics Opinion E-84-7 (1984).

In practice

Under the North Carolina rules as they stood at the time of the opinion, staying silent about a known clerk's error that dismissed the client's charges contrary to the negotiated plea is not permitted; per the opinion the lawyer must inform the court or clerk of the apparent error. The opinion frames this as the lawyer's duty as an officer of the court prevailing where it conflicts with the duty to the client.

Per the opinion, the result turns on the lawyer's actual knowledge that a mistake produced a result the plea did not provide for. The opinion contrasts that situation with 98 FEO 5, where the adversary system left it to the prosecutor to carry the burden of proof and the defense lawyer was not required to volunteer adverse facts.

Common questions

Q: Does a defense lawyer have to report a clerk's error that benefited the client?

A: Yes, on these facts. The opinion concludes that when the lawyer knows a clerk's error dismissed all charges contrary to the negotiated plea, the lawyer must inform the court or clerk, because the duty to the court prevails over the duty to the client.

Q: Which rules require disclosure here?

A: The opinion relies on the lawyer's role as an officer of the legal system (Rule 0.1), Rule 8.4(d) (conduct prejudicial to the administration of justice), and Comment [2] to Rule 3.3 on protecting the integrity of the adjudicative process.

Q: How is this different from 98 FEO 5, where the lawyer did not have to correct the prosecutor?

A: The opinion distinguishes 98 FEO 5 because there both advocates were present and the prosecutor bore the burden of proof, so the defense lawyer need not volunteer adverse facts. Here the lawyer knew an error, not the adversary process, had produced a result the plea did not provide for.

Background and rules framework

The opinion applies North Carolina Rule 3.3 (candor toward the tribunal, the analogue of Model Rule 3.3), its Comments [2] and [11], together with Rule 0.1 (the preamble's statement that a lawyer is an officer of the legal system) and Rule 8.4(d) (Model Rule 8.4(d), conduct prejudicial to the administration of justice). It treats the officer-of-the-court duty as controlling when it conflicts with the duty to the client.

Citations and references

Rules of Professional Conduct:

• MR 3.3 / NC Rule 3.3, Comments [2] and [11] (candor toward the tribunal; integrity of the adjudicative process)
• MR 8.4(d) / NC Rule 8.4(d) (conduct prejudicial to the administration of justice)
• NC Rule 0.1 (preamble; lawyer as officer of the legal system)

Other opinions cited:

• NC 98 FEO 5: a defense lawyer has no duty to inform the court of an inaccurate driving record the prosecutor presented (distinguished).
• Wisconsin Formal Ethics Opinion E-84-7 (1984): a defense attorney has an obligation to inform the court or the court's staff of a clerk of court's error (accord).

See also

• ABA Formal Op. 98-412: Client Violating a Court Order
• ABA Formal Op. 93-376: Client Lying in Discovery

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2011-formal-ethics-opinion-12/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Lawyer has a client in custody who has numerous cases pending in district court. Lawyer negotiates a plea agreement with the assistant district attorney (ADA) whereby all but two of the charges will be dismissed. Lawyer asks for the client to be brought into the courtroom to enter his plea. At that time, Lawyer is informed that the client has already been taken back to the jail. Lawyer and the ADA agree to continue the case to the next business day. When Lawyer subsequently goes to visit his client in jail, he is told that the client was released because all of his charges were dismissed.

Upon investigation, Lawyer confirms that all of the client’s charges had been voluntarily dismissed. The dismissals are clearly the result of an error by the clerk of court and do not reflect the plea agreement entered into by Lawyer and the ADA.

Must lawyer inform the clerk of court of the error?

Opinion:

Yes. The preamble to the Rules of Professional Conduct provides that as a member of the legal profession, a lawyer is an “officer of the legal system.” Rule 0.1. Rule 8.4(d) states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Similarly, Comment [2] to Rule 3.3 (Candor Toward the Tribunal) refers to the special duties of lawyers as officers of the court to “avoid conduct that undermines the integrity of the adjudicative process.”

Under Rule 3.3, for example, a lawyer has a duty to disclose a client's false testimony even though it may have grave consequences for the client, where the alternative is that the lawyer cooperate in deceiving the court thereby subverting the truth-finding process which the adversary system is designed to implement. Rule 3.3, Cmt. [11]. Thus, if a conflict arises between a lawyer’s duty to his client and his duties as an officer of the court, the lawyer’s duty to the court must prevail.

This inquiry differs from that addressed in 98 FEO 5, which provides that a defense lawyer does not have a duty to inform the court of an inaccurate driving record presented by the prosecutor. In the situation addressed in 98 FEO 5, both advocates are present in court and each is expected to present evidence and carry his burden of proof. The opinion states that the burden of proof is on the state to show that the defendant's driving record justifies a more restrictive sentencing level and that the defense lawyer is not required to volunteer adverse facts when the prosecutor fails to bring them forward.

In the instant inquiry, Lawyer knows that his client’s charges were dismissed in error and that “justice” (in the form of a negotiated plea to which Lawyer and the client agreed) was not carried out. Therefore, Lawyer has an obligation to inform the court or the clerk of court of the apparent error. Accord Wis. Formal Ethics Op. E-84-7 (1984)(defense attorney has obligation to inform the court or the court’s staff of clerk of court’s error).