Must a criminal defense lawyer tell the court about a clerical error in the judgment that would let the defendant serve less time than the judge ordered?

Plain-English summary

The Board addressed two questions about errors that could cause a criminal defendant to serve a lesser sentence than the court ordered. On the first, it considered a clerical error in a judgment entry drafted by the prosecutor that favors the defendant, defining "clerical error" and noting that Crim. R. 36 allows courts to correct such mistakes at any time. The Board weighed an attorney's duties to the client (zealous representation under DR 7-101, including DR 7-101(A)(3); confidentiality under DR 4-101) against duties as an officer of the court (DR 7-102 and the prohibition on conduct prejudicial to the administration of justice under DR 1-102(A)(5)).

Reviewing Ohio disciplinary case law (Leggett, Heffernan, Greene, Nienaber), the Board found the duties of an attorney as an officer of the court to be absolute, coexisting with and at times overriding other duties. It acknowledged that advisory committees in Virginia, Michigan, and New Mexico had reached different conclusions on related questions, but concluded that an attorney who knows a judgment entry contains a clerical error changing the plea, verdict, findings, or sentence has a duty to notify the court. The Board reasoned that a clerical error is not a client confidence or secret that must be protected, and that revealing it is not prejudicial to the client because it is not prejudicial to a client to serve the actual sentence the court imposed.

On the second question, the Board concluded that a defense attorney has no ethical duty to notify the court of a possible misinterpretation of a sentence by the Department of Rehabilitation and Correction, reasoning that a defense attorney is not required to oversee an administrative agency's decisions or to second-guess whether the agency is misreading a sentence given the many statutory and administrative factors involved. The Board noted that legal implications of a client's erroneous release were beyond the opinion's scope.

Currency note

The Board's status list flags this opinion as a CPR Opinion that provides advice under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007.

This opinion issued in 1999, before that revision. The DR 1-102, DR 4-101, DR 7-101, and DR 7-102 provisions discussed here have been replaced by Ohio Prof. Cond. R. 3.3, 8.4, and 1.6. Treat this page as historical context, not current guidance. Verify against the current Ohio rules before relying on any specific provision mentioned here.

Common questions

Q: Did a defense lawyer have to tell the court about a clerical error that helped the client?

A: Yes. The opinion concluded that an attorney who knows a judgment entry contains a clerical error changing the plea, verdict, findings, or sentence has a duty to notify the court, even where the error favors the client.

Q: Was the clerical error protected as a client confidence?

A: No. The opinion concluded that a clerical error is not a confidence or secret of the client and that revealing it is not prejudicial to the client, because serving the actual sentence the court imposed is not a prejudice.

Q: Did the duty apply to prosecutors as well?

A: Yes. The opinion stated that whenever an attorney, prosecutor or defense attorney, knows of such a clerical error, the attorney has a duty to notify the court.

Q: Did the lawyer have to flag a prison agency's misreading of the sentence?

A: No. The opinion concluded a defense attorney has no ethical duty to notify the court of a possible misinterpretation of the sentence by the Department of Rehabilitation and Correction.

Background and rules framework

The opinion interprets former Ohio Code of Professional Responsibility DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 4-101 (confidences and secrets), DR 7-101 (zealous representation), and DR 7-102 (representing a client within the bounds of the law), provisions now addressed by Ohio Prof. Cond. R. 3.3, 8.4, and 1.6 (Model Rules 3.3, 8.4, and 1.6). It also references Crim. R. 32(C) and 36 and Sup. R. 7.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 1-102(A)(5), DR 4-101(B)(1), (2), DR 7-101(A)(3), DR 7-102(A)(3), (5), (8), DR 7-102(B); Gov. Bar R. I 8(A) (Oath of Office)

Statutes and rules:

• Crim. R. 32(C); Crim. R. 36; Sup. R. 7(A), (B)

Cases:

• Cincinnati Bar Ass'n v. Leggett, 176 Ohio St. 281 (1964), impeding the administration of justice
• Disciplinary Counsel v. Heffernan, 58 Ohio St. 3d 260 (1991), inaction after learning of fraud on the court
• Disciplinary Counsel v. Greene, 74 Ohio St. 3d 13 (1995), misrepresenting a crucial fact to the court
• Cincinnati Bar Ass'n v. Nienaber, 80 Ohio St. 3d 534 (1997), candor to the court

Other opinions cited:

• Virginia State Bar LEO 1400; State Bar of Michigan Op. RI-165; State Bar of New Mexico Op. 1990-2 (contrary views on related questions)

See also

• Ohio BPC Op. 1999-006: Referral to a Litigation-Funding Company
• Ohio BPC Op. 1999-002: Communicating With Clients by Unencrypted Email

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-99-008.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

                                      OFFICE OF SECRETARY




                                    Opinion 99-8
                               Issued December 2, 1999

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is
superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A criminal defense attorney has a duty to notify the court of a clerical
error in a defendant’s sentence in a judgment entry drafted by the prosecutor’s office that
may result in the defendant serving a lesser sentence than ordered by the court.
Whenever an attorney (prosecutor or defense attorney) knows that a judgment entry
contains a clerical error that changes the plea, verdict or findings, or the sentence the
attorney has a duty to notify the court. To remain silent when there is a known clerical
error that changes the plea, verdict or findings, or the sentence is conduct prejudicial to
the administration of justice.

A criminal defense attorney does not have an ethical duty to notify the court of a possible
misinterpretation of a sentence by the Department of Rehabilitation and Correction that
may result in the defendant serving less time than ordered by the court.

OPINION: This opinion presents questions as to an attorney’s duty with regard to errors
and misinterpretations that may result in a criminal defendant serving a lesser sentence
than ordered by the court.

   1. Does a criminal defense attorney have a duty to notify the court of a
      clerical error in a defendant’s sentence in a judgment entry drafted by
      the prosecutor’s office that may result in the defendant serving less
      time than ordered by the court?

   2. Does a criminal defense attorney have a duty to notify the court of a
      possible misinterpretation of a sentence by the Department of
      Rehabilitation and Correction that may result in the defendant serving
      less time than ordered by the court?

Question 1: Clerical Errors in a Judgment Entry

   Does a criminal defense attorney have a duty to notify the court of a
   clerical error in a defendant’s sentence in a judgment entry drafted by the
   prosecutor’s office that may result in the defendant serving a lesser
   sentence than ordered by the court?

Opinion 99-8 2

A clerical error in a criminal judgment entry is a serious matter. “Clerical error” is
defined as “[a]n error resulting from a minor mistake or inadvertence, esp. in writing or
copying something on the record, and not from judicial reasoning or determination.”
Black’s Law Dictionary 563 (7th ed. 1999).

A criminal judgment sets forth the “plea, the verdict or findings, and the sentence” as
required under Crim R. 32(C). Mistakes in drafting the plea, verdict or findings, or the
sentence may result in outcomes not intended by the court. Even a minor mistake or
inadvertence in drafting a criminal judgment may result in a major difference in outcome
particularly when the mistake changes the sentence to be served.

The rules of criminal procedure permit clerical errors to be corrected. Under Crim R. 36
“[c]lerical mistakes in judgments, orders, or other parts of the record, and errors in the
record arising from oversight or omission, may be corrected by the court at any time.”

Obviously, neither the prosecutor nor the defense attorney should approve an entry that
they know contains a clerical error in the plea, findings or verdict, or the sentence. Under
Sup R 7(A) a judgment entry is to be filed and journalized within thirty days of the
verdict, decree, or decision and if it is not prepared and presented by counsel it shall be
prepared and filed by the court. Under Sup R. 7(B) “[a]pproval of a judgment entry by a
counsel or party indicates that the entry correctly sets forth the verdict, decree, or
decision of the court and does not waive any objection or assignment of error for appeal.”
Approving a judgment with a known clerical error would be tantamount to knowingly
making a false statement of law or fact which is prohibited under DR 7-102(A)(5).

Ideally, clerical errors would be noticed by the prosecutor or the court and corrected
immediately after a judgment entry is filed. A prosecutor as standard bearer of the truth
has an obvious duty to correct known clerical errors in judgment.

But, what if the clerical error goes unnoticed for months maybe even years? For
example, what if the error is discovered by the incarcerated defendant upon receipt of
prison paperwork setting a release date earlier than what the judge ordered at the
sentencing hearing? What if the prisoner then notifies the attorney who checks the
judgment entry against the transcript of the hearing and discovers that an error was made
in the judgment entry that will result in the prisoner serving a lesser sentence time?

In those situations where the clerical error goes unnoticed for months or years, what is a
defense attorney’s duty? Is there a duty upon a defense counsel to correct a known
clerical error in the judgment when the error is favorable to the defendant? Is an
attorney’s duty to a client qualified by the attorney’s duty as an officer of the court?

The Ohio Code of Professional Responsibility provides rules regarding an attorney’s
duties to a client and an attorney’s duties as an officer of the court. As to client duties, an
attorney must represent a client zealously under DR 7-101. Under DR 7-101(A)(3), an
attorney shall not “[p]rejudice or damage his client during the course of the professional
relationship, except as required under DR 7-102(B) [reporting fraud upon a person or
tribunal].” Also, an attorney must preserve client confidences and secrets under DR 4-

101. Under DR 4-101(B)(1) a lawyer shall not “[r]eveal a confidence or secret of his
     Opinion 99-8 3

client.” Under DR 4-101(B)(2) a lawyer shall not “[u]se a confidence or secret of his
client to the disadvantage of the client.”

An attorney’s duties as an officer of the court begin upon admission to the bar when an
attorney swears or affirms to uphold the Oath of Office. The Oath of Office includes
language referring to both “capacity as an attorney and officer of the Court.” See
Gov.Bar R. I §8 (A) (emphasis added). As an attorney and officer of the court, an
attorney must represent a client within the bounds of the law under DR 7-102. For
example, under DR 7-102(A)(3) a lawyer may not “[c]onceal or knowingly fail to
disclose that which he is required by law to reveal.” Under DR 7-102(A)(5) a lawyer
may not “[k]nowingly make a false statement of law or fact.” Under DR 7-102(A)(8) a
lawyer may not “[k]nowingly engage in other illegal conduct or conduct contrary to a
Disciplinary Rule.” Under DR 7-102(B) (1) and (2) an attorney has specific duties with
regard to reporting fraud upon a person or a tribunal. The duty of zealous representation
of DR 7-101 is tempered by the duties set forth in DR 7-102. Also, pertinent to an
attorney’s duties as an officer of the court is that an attorney shall not “[e]ngage in
conduct prejudicial to the administration of justice” under DR 1-102(A)(5).

Ohio case law in disciplinary matters is instructive as to the proper balance between the
rules governing duties to a client and the rules governing duties as an officer of the court.
Thirty-five years ago, the Supreme Court of Ohio indefinitely suspended an attorney who
impeded the administration of justice by telling a person to burn records he knew would
be relevant to an inquiry by a federal grand jury. Cincinnati Bar Ass’n v. Leggett, 176
Ohio St. 281, 282 (1964). The court stated “[i]t is the duty of an attorney, an officer of
the court, to aid in the administration of justice.” Id. at 282.

In 1991, the court ordered a six months suspension of a criminal defense attorney for his
inaction in failing to reveal to the court that the defendant had perpetrated a fraud on the
court at the time of trial. Disciplinary Counsel v. Heffernan, 58 Ohio St. 3d 260 (1991).
The defendant lied to the court about his identity by using his brother’s identity. The
attorney did not know of the fraud perpetrated on the court until after the time of trial.
However, the court found that the attorney’s inaction upon learning of the fraud was a
violation of the rules.

   We accept the findings of the board that respondent did not know of the
   fraud perpetrated on the court at the time of trial in the Shaker Heights
   Municipal Court. However, once respondent learned of the fraud and
   confronted the Fresenda brothers, he had a duty to reveal the fraud to the
   court. See DR 7-102(B)(1). We consider respondent’s inaction in this
   matter a serious breach of duty for which a public reprimand is not an
   adequate sanction.
   Id. at 261.

In 1995, the court, in Disciplinary Counsel v. Greene, 74 Ohio St. 3d 13 (1995),
suspended an assistant prosecuting attorney for misrepresenting a crucial fact to the court.
The court stated that the case presented “an opportunity to state a clear test that should be
applied in all cases where an officer of the court intentionally misrepresents a crucial fact
to the court in order to effect a desired result to benefit a party.” Id. at 15. The court held
that “when a lawyer intentionally misrepresents a crucial fact to a court in order to effect
Opinion 99-8 4

a desired result to benefit a party, the lawyer will be suspended from the practice of law
in Ohio for an appropriate period of time.” Id. at 16, 17. The court addressed the co-
existing duties of lawyers.

   It is true that the vigorous and effective representation of a client is the
   responsibility of all attorneys. This duty, however, does not exist in
   isolation from the other obligations imposed upon an attorney through
   our Disciplinary Rules. In addition to the commitment to a client, a
   lawyer’s responsibilities include a devotion to the public good and to the
   maintenance and improvement of the administration of justice. While an
   attorney, as a zealous advocate, may characterize facts favorably to the
   attorney’s client, the attorney’s duty, as an officer of the court, is to
   uphold the legal process and demonstrate respect for the legal system by
   at all times being truthful with a court and refraining from knowingly
   making statements of fact or law that are not true. Respect for the law
   and our legal system, through both an attorney’s words and actions,
   should be more than a platitude. The obligations of professional
   responsibility may not be overshadowed by either a desire to win a case
   or as a favor to any person.
   Id. at 16.

More recently, the court indefinitely suspended an attorney in a criminal case for making
affirmative representations to the courts that were untrue and by silence allowing the
court to make unwarranted inferences.’’ Cincinnati Bar Ass’n v. Nienaber, 80 Ohio St.
3d 534, 537 (1997). The court emphasized the requirement of candor.

   We require complete candor with courts. We agree with the Supreme
   Court of Nebraska, which sixty years ago said, “An attorney owes his first
   duty to the court. He assumed his obligations toward it before he ever had
   a client. His oath requires him to be absolutely honest even though his
   client’s interests may seem to require a contrary course. The [lawyer]
   cannot serve two masters; and the one [he has] undertaken to serve
   primarily is the court,” In re Integration of the Nebraska State Bar Assn.
   (1937) 133 Neb. 283, 289, 275 N.W. 265, 268.
   Id. at 537.

These cases do not address clerical errors in judgments. An attorney’s duty with regard
to reporting clerical errors in judgments to the court has not been ruled upon or advised
upon in Ohio. Yet, these cases persuade the Board that the proper interpretation of the
Ohio Code of Professional Responsibility is that the duties of an attorney as an officer of
the court are absolute, they co-exist with and may at times override other duties.

In so expressing this view that the duties of an attorney as an officer of the court may
override other duties, the Board acknowledges that advisory committees in other states
have expressed different views in their consideration of related issues.

   Virginia State Bar, LEO 1400 advises that “defense counsel is not under
   any affirmative obligation to reveal that the court document erroneously
   stated that the client had been sentenced for a misdemeanor rather than a

Opinion 99-8 5

   felony, unless the client requested that he inform the court of the error.
   Under DR 7-101(A)(3), it would be unethical for an attorney to reveal
   information that would prejudice or damage his client.”

   State Bar of Michigan, Op. RI-165 advises that “[a] lawyer has no duty to
   inform the prosecutor’s office of its failure to initiate criminal charges
   against the lawyer’s client, even though the initiation of the charges was
   part of a negotiated plea agreement between the lawyer and the
   prosecuting attorney.”

   State Bar of New Mexico, Op. 1990-2 advises that “the attorney has no
   duty to notify the court that the case has ‘fallen through the cracks.’” (The
   attorney had received no notice of a sentencing hearing for his client who
   had either pled guilty or been tried and found guilty).

Nevertheless, this Board’s view is that whenever an attorney (prosecutor or defense
attorney) knows that a judgment entry contains a clerical error that changes the plea,
verdict or findings, or the sentence the attorney has a duty to notify the court. A clerical
error is not a confidence or secret of a client that must be protected. Revealing a clerical
error is not damaging or prejudicial to a client even though the clerical error is favorable
to the client, for it is not damaging or prejudicial to a client to serve the actual sentence
that the court imposed at the sentencing hearing.

In conclusion, the Board advises that a criminal defense attorney has a duty to notify the
court of a clerical error in a defendant’s sentence in a judgment entry drafted by the
prosecutor’s office that may result in the defendant serving a lesser sentence than ordered
by the court. Whenever an attorney (prosecutor or defense attorney) knows that a
judgment entry contains a clerical error that changes the plea, verdict or findings, or the
sentence the attorney has a duty to notify the court. To remain silent when there is a
known clerical error that changes the plea, verdict or findings, or the sentence is conduct
prejudicial to the administration of justice.
Opinion 99-8 6

Question 2: Misinterpretation of a court’s order by the Department of Rehabilitation
and Correction.

   Does a criminal defense attorney have a duty to notify the court of a
   possible misinterpretation of a sentence by the Department of
   Rehabilitation and Correction that may result in the defendant serving less
   time than ordered by the court?

It is the Board’s view that a criminal defense attorney does not have an ethical duty to
notify the court of a possible misinterpretation of a sentence by the Department of
Rehabilitation and Correction that may result in the defendant serving less time than
ordered by the court. First, a defense attorney is not required to oversee the decisions of
an administrative agency such as the Department of Rehabilitation and Correction.
Second, a defense attorney is not required to second guess whether a sentence is being
misinterpreted by the Department of Rehabilitation and Correction, for there could be a
multitude of statutory and administrative factors that contribute to the decisions of the
Department of Rehabilitation and Correction.

In general

Attorneys should be aware that there are legal implications to consider with regard to a
client’s erroneous release from serving a sentence. Those issues are beyond the scope of
this opinion. For a discussion of the legal issues see Gabriel J. Chin, Getting Out of Jail
Free: Sentence Credit for Periods of Mistaken Liberty, Cath U. Law Rev. 403 (1996).
See also, e.g., Jefferson v. Morris, Superintendent, Southern Ohio Correctional Facility,
48 Ohio App. 3d 81 (1988); Jefferson v. Ohio Adult Parole Authority, 86 Ohio St. 3d 304
(1999).

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.