The prosecutor and judge don't seem to know about a recent change in the criminal statute that hurts my client. Do I have to tell the court about it?

Plain-English summary

The inquiring attorney represented a criminal defendant and asked about the attorney's obligations where the prosecutor and the court appeared to be unaware of a recent change in a criminal statute that is adverse to the client. The attorney asked whether he or she must reveal the recent change in the law to the prosecution and the court.

The panel took the position that the attorney's ethical obligation is to bring the recent change in the law to the attention of the court, basing its opinion on Rhode Island Rules of Professional Conduct 3.3, 8.4, and 1.2. Rule 3.3 (Candor Toward the Tribunal) bars knowingly failing to disclose legal authority in the controlling jurisdiction known to be directly adverse to the client's position and not disclosed by opposing counsel. Rule 8.4 (Misconduct) makes it professional misconduct to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 1.2 (Scope of Representation) bars counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent.

The panel concluded that Rule 3.3 requires the attorney to disclose the recent change in the law to the court, that Rule 8.4 makes a failure to do so dishonest conduct amounting to professional misconduct, and that Rule 1.2 prohibits the attorney from assisting the client in taking advantage of the court's apparent unawareness of the mandatory provisions of the new law.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 3.3, 8.4, and 1.2 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Must I tell the court about a recent statutory change that hurts my client if the court and prosecutor missed it?

A: Under this opinion, yes. The panel concluded the attorney's obligation is to bring the recent change in the law to the court's attention, and that Rule 3.3 requires disclosure of directly adverse controlling authority not disclosed by opposing counsel.

Q: What happens if I stay silent?

A: Per the opinion, Rule 8.4 makes a failure to disclose dishonest conduct amounting to professional misconduct.

Q: Can I let my client benefit from the court's mistake?

A: Per the opinion, Rule 1.2 prohibits the attorney from assisting the client in taking advantage of the court's apparent unawareness of the mandatory provisions of the new law.

Background and rules framework

The opinion applies Rule 3.3 (Candor Toward the Tribunal), Rule 8.4 (Misconduct), and Rule 1.2 (Scope of Representation), corresponding to Model Rules 3.3, 8.4, and 1.2. Rule 3.3(a)(3) requires disclosure of controlling legal authority directly adverse to the client's position when opposing counsel has not disclosed it; Rule 8.4(c) prohibits conduct involving dishonesty; and Rule 1.2(d) bars counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent. The panel read these together to require disclosure of the adverse statutory change.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal)
• MR 8.4 (misconduct)
• MR 1.2 (scope of representation)
• RI RPC 3.3, RI RPC 8.4, RI RPC 1.2

Statutes:

• None cited by number (the opinion refers generally to a recent change in a criminal statute adverse to the client).

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 88-18: Good-Faith Argument for Extension of Existing Law
• RI EAP Op. 91-36: Deposing Counsel and a Former Joint Client Conflict

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2091-39.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel
Opinion #91-39, Request #127
Issued July 18, 1991

An attorney seeks Panel opinion concerning his/her ethical obligations under circumstances in which the prosecutor and the court appear to be unaware of a recent change in a criminal statute which is adverse to the client defendant. The attorney asks whether he/she must reveal this recent change in the law to the prosecution and the court.

The Panel takes the position that the attorney's ethical obligation in these circumstances is to bring this recent change in the law to the attention of the court. The Panel bases its opinion on Rhode Island Rules of Professional Conduct 3.3, 8.4 and 1.2.

Rule 3.3, entitled "Candor Toward the Tribunal", provides in pertinent part:

(a) A lawyer shall not knowingly:

(2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

Rule 8.4, entitled "Misconduct", states in relevant part:

It is professional misconduct for a lawyer to:

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation...

Rule 1.2, entitled "Scope of Representation", provides in pertinent part:

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

(e) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the

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relevant limitations on the lawyer's conduct.

The Panel is of the opinion that Rule 3.3 requires the attorney to disclose the recent change in the law to the court, Rule 8.4 states that a failure to do so involves dishonest conduct amounting to professional misconduct. Rule 1.2 prohibits the attorney from assisting the client in taking advantage of the court's apparent unawareness of the mandatory provisions of the new law.