My criminal client was released into a court-ordered residential drug treatment program and then walked out. Do I have to report that to the sentencing court?

Plain-English summary

The inquiring attorney represented a criminal defendant who had admitted guilt. Sentencing was continued for several months so the defendant could complete a residential drug treatment program; successful completion would result in release with no further incarceration. The court released the defendant on his own recognizance and into the attorney's custody for immediate transportation to the facility, without directing the attorney to make interim reports or to notify the court if the client left treatment. The attorney delivered the client to the facility. A few days later, the facility notified the attorney that the client had left shortly after arriving. The attorney asked whether Rule 3.3 obligated him to report that to the court.

The panel concluded that Rule 3.3 imposed no such obligation. The fact that the client had left the program was information relating to the representation and therefore protected by Rule 1.6, unless a Rule 1.6(b) exception applied or disclosure was permitted or required by court order, other law, or another rule such as Rule 3.3. The panel identified Rule 3.3(a)(2), which requires disclosure of a material fact when necessary to avoid assisting a client's criminal or fraudulent act, as the pertinent provision. Relying on ABA Formal Opinion 98-412 (1998), the panel reasoned that whether disclosure is required turns on whether the lawyer's silence would assist the client in criminal or fraudulent conduct.

The panel concluded that on these facts the attorney's failure to disclose the client's violation of the court's order did not assist the client in committing a crime or fraud, so Rule 3.3(a)(2) imposed no duty to disclose. Having no such duty, the attorney was prohibited by Rule 1.6(a) from disclosing the information without the client's consent. The panel added that at the sentencing hearing the attorney might have a duty to assert the attorney-client privilege and the obligation of confidentiality, and that if a court ordered disclosure, the attorney had to comply.

Currency note

This opinion was issued in March 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 1.6 and 3.3 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. 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: Does a criminal defense lawyer have to tell the court when a client leaves court-ordered treatment?

A: Not on these facts. The opinion concluded Rule 3.3 imposed no obligation to disclose, because the lawyer's silence would not assist the client in a criminal or fraudulent act under Rule 3.3(a)(2).

Q: Is the fact that the client left treatment confidential?

A: Yes. The opinion treated it as information relating to the representation, protected by Rule 1.6(a). Because no disclosure duty applied, the lawyer was prohibited from revealing it without the client's consent.

Q: What if the court orders the lawyer to disclose?

A: The opinion stated that if a court issues an order requiring disclosure, the lawyer must comply, citing the Comment to Rule 1.6. It also noted the lawyer might have a duty at sentencing to assert the privilege and confidentiality.

Background and rules framework

The opinion applied Rhode Island Rules of Professional Conduct 1.6 (Model Rule 1.6) and 3.3 (Model Rule 3.3) as originally adopted. Rule 1.6(a) bars revealing information relating to the representation, from any source, absent client consent or an exception, and Rule 1.6(b) makes certain disclosures permissive rather than mandatory. Rule 3.3(a)(2) requires disclosure of a material fact to a tribunal when necessary to avoid assisting a client's criminal or fraudulent act, and Rule 3.3(b) provides that the candor duties apply even if compliance requires disclosing information otherwise protected by Rule 1.6. The panel followed ABA Formal Opinion 98-412 (1998), which addressed a lawyer's disclosure obligations when a client violates a court order, in framing the Rule 3.3(a)(2) analysis.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / RI RPC 1.6(a), 1.6(b) (confidentiality of information)
• Model Rule 3.3 / RI RPC 3.3(a)(2), 3.3(b) (candor toward the tribunal)

Other opinions cited:

• ABA Formal Op. 98-412 (1998) (lawyer's disclosure duty when a client violates a court order): the panel's controlling authority

See also

• RI EAP Op. 99-07: Child-support agency conflicts and imputation
• RI EAP Op. 99-17: Client consent to a bill audit under Rule 1.6

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%2099-06.pdf

Original opinion text

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

Final

                           RHODE ISLAND SUPREME COURT
                              ETHICS ADVISORY PANEL
                            Opinion No. 99-06 Request No. 773
                                 Issued March 10, 1999

Facts:

     The inquiring attorney represents a defendant in a criminal matter in which the defendant

admitted guilt. Sentencing was continued for several months to allow the defendant an opportunity to
participate in a residential drug treatment program. Successful completion of the program by the
defendant would result in his/her release with no further incarceration. The defendant was ordered
back to the ACI pending the location of a residential drug treatment facility. The inquiring attorney and
the defendant subsequently appeared before the court to report that arrangements had been made for
the defendant's placement in such a facility and to request that the defendant be released into the
inquiring attorney's custody for the purpose of transporting him/her to the facility. The inquiring attorney
states that the court released the defendant on his own recognizance and into the inquiring attorney's
custody for immediate transportation to the drug treatment facility. He/she further states that the court
did not direct as part of the order that the inquiring attorney make interim reports or notify the court if
the client failed to remain in treatment. Pursuant to the court order the inquiring attorney transported the
client to the facility and turned him/her over to the facility's intake personnel. A few days later, a
representative of the facility notified the inquiring attorney that the client left the facility shortly after
arriving there.

Issue Presented:

     The inquiring attorney asks whether he/she has an obligation under Rule 3.3 to report the

client's actions to the court.

Opinion:

     Rule 3.3 does not impose an obligation on the inquiring attorney to disclose to the court the fact

that his/her client has left a court-ordered residential drug treatment program.

Reasoning:

    This inquiry implicates both Rule 1.6 and Rule 3.3 of the Rules of Professional Conduct which

provide as follows:

    Rule 1.6. Confidentiality of Information. - (a) A lawyer shall not reveal information relating

to representation of a client unless the client consents after consultation, except for disclosures that are
impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).
Final Op. 99-06
Page 2

      (b) A lawyer may, but is not obligated to, reveal such information to the
      extent the lawyer reasonably believes necessary:

            (1) to prevent the client from committing a criminal act that
            the lawyer believes is likely to result in imminent death or
            substantial bodily harm; or

            (2) to establish a claim or defense on behalf of the lawyer in a
            controversy between the lawyer and the client, to establish a
            defense to a criminal charge or civil claim against the lawyer
            based upon conduct in which the client was involved, or to
            respond to allegations in any proceeding concerning the
            lawyer's representation of the client.

    Rule 3.3. Candor Toward the Tribunal. - (a) A lawyer shall not knowingly:

                  (1) make a false statement of material fact or law to a
                  tribunal;

                  (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, or

                  (4) offer evidence that the lawyer knows to be false. If
                  a lawyer has offered material evidence and comes to
                  know of its falsity, the lawyer shall take reasonable
                  remedial measures.

            (b) The duties stated in paragraph (a) continue to the conclusion of the
            proceeding, and apply even if compliance requires disclosure of
            information otherwise protected by Rule 1.6.

       Rule 1.6 applies not only to matters communicated to the attorney in confidence by the client,

but also to all information relating to the representation, whatever its source. See Comment to Rule
1.6. In this inquiry, the information that the client has left the court-ordered
Final Op. 99-06
Page 3

treatment program is information relating to the representation. It is therefore protected from disclosure
unless the exceptions stated in Rule 1.6(b) apply, or unless permitted or required by court order, other
law, or other Rules of Professional Conduct such as Rule 3.3. Pursuant to Rule 3.3, a lawyer has
obligations of candor toward the tribunal that apply even if compliance with
those duties will require disclosure of information that the lawyer otherwise is prohibited from disclosing
by Rule 1.6(a). See Rule 3.3(b). However, the Panel is of the opinion that in this
inquiry Rule 3.3 does not impose on the inquiring attorney an obligation to disclose to the court that
his/her client has left a court-ordered residential drug treatment program.

       The ABA Standing Committee on Ethics and Professional Responsibility recently examined

the disclosure obligations of a lawyer who has learned that a client has violated a court order limiting or
prohibiting the transfer of assets. In Formal Opinion 98-412 (1998) the committee stated:

            [U]nless disclosure is necessary to avoid a false statement by the lawyer
            to the court or to avoid assisting a client in a criminal or fraudulent act,
            the lawyer is bound by the obligation of confidentiality in Rule 1.6(a)
            and may not reveal the client's misconduct to the court without the
            client's consent. The Committee concludes that is true even if the
            client's misconduct is a violation of an order entered by a court during
            litigation in which the lawyer represents the client.

     The provision that is pertinent to this inquiry is Rule 3.3(a)(2). Under this provision, a lawyer

has an obligation to disclose to the tribunal a material fact when disclosure is necessary to avoid assisting
a criminal or fraudulent act by the client. Whether disclosure is required by Rule 3.3(a)(2) in this inquiry
depends upon whether the inquiring attorney's silence will assist the client in fraudulent or criminal
conduct. See ABA Formal Op. 98-412 (1998). It is the Panel's opinion that under the facts provided
the inquiring attorney's failure to disclose his/her client's violation of the court's order does not
constitute assistance to the client in committing a crime or fraudulent act. See ABA Formal Op. 98-412
(1998). Accordingly, the inquiring attorney has no obligation under Rule 3.3(a)(2) to disclose the
information to the court. Having no such obligation, the inquiring attorney is prohibited from disclosing
the information to the court or to others pursuant to Rule 1.6(a), absent the client's consent.

    The Panel further advises that at the time of the hearing for the client's sentencing, the inquiring

attorney may have a duty under the Rules to assert the attorney-client privilege and the obligation of
confidentiality regarding this information. Should a court issue an order requiring disclosure, the
inquiring attorney must comply. See Comment to Rule 1.6.