These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 56 - Duty to Advise the Court
LEO NumTopicsSummaryDate
1355

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31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A client told a lawyer that the client would take criminal action against the client's adversary and also commit suicide if the client lost a case. If the lawyer "has determined that a reasonably prudent and competent lawyer would conclude that the client in fact intended to take such action should the conditions precedent [losing the case] take place," the lawyer had a duty to reveal the intentions. However, because the court hearing the case would be unable to prevent the crimes, it would be improper to reveal the client's intent to the court. 5/24/1990
0390

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31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A court-appointed lawyer must report the true financial status of a client -- "regardless of the source of his information." 8/25/1980
1400

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31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A criminal defense lawyer representing a client found guilty of a felony is under no duty to reveal that the sentencing document later signed by the judge erroneously stated that the defendant was found guilty only of a misdemeanor (assuming that the lawyer did not endorse the document or otherwise participate in drafting it). In fact, the lawyer was ethically obligated not to reveal the error because the revelation would damage the client. [Rule 3.3(a)(2) and Rule 4.1(b) might affect this analysis, because it prohibits a lawyer from knowingly failing to disclose a fact "when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client."]3/12/1991
1361

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4-Witness-Advocate Rule

31-Protecting and Disclosing Confidences and Secrets

35-Threatening Criminal and Disciplinary Action

56-Duty to Advise the Court

A defense lawyer learning that the plaintiff tried to bribe a witness must advise the tribunal of the potential crime and may also advise the Commonwealth's Attorney (the Bar did not decide if failure to report the crime would amount to misprision of a felony under Va. Code § 18.2-461). The lawyer may continue to represent the defendant in the civil case even though the lawyer might be a witness in the resulting criminal matter. Reporting the bribery would itself be unethical only if the lawyer was acting "solely for the purpose of obtaining an advantage in a civil matter."6/28/1990
0486

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer has no duty to advise the court that its opinion may be based on a factual error as long as neither the lawyer nor the client misrepresented any facts and the court did not recite any erroneous facts in its opinion. 11/8/1982
1224

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer may ethically file an action asserting a cause of action which had previously been dismissed in a similar case by the same court. The lawyer may ethically refrain from telling the court of the earlier action, but must answer honestly if the court asks about prior rulings. Furthermore, the earlier decision was being appealed, so the lawyer could be making a good faith argument for an extension, modification or reversal of existing law. [Rule 3.3(a)(3) would require disclosure if the earlier decision was "controlling legal authority."]3/9/1989
0491

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

A lawyer may file an action even after the statute of limitations has run, because the statute of limitations is an affirmative defense which is effective only if raised. 9/3/1982
ABA-387

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer may not advise an adversary that the statute of limitations has run on the lawyer's client's claim (because the running is a client confidence). The lawyer may file a time-barred action (because the statute of limitations is an affirmative defense), unless the jurisdiction prohibits such a filing. 9/26/1994
0194

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

A lawyer must advise a court if it lacks jurisdiction over a matter in which the lawyer is involved. 7/30/1968
1643

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8-Bills and Fees

17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

73-Family Law Lawyers

A lawyer represented a client in a divorce. After the representation ended, the former client filed for bankruptcy. The former client listed the lawyer's bill as a debt, but failed to list assets that were included in the publicly filed divorce property settlement agreement. The Bar held that the existence of these assets could still be a secret "despite the fact that others share the same information or the information is a matter of public record." The lawyer may therefore only reveal the fraud on the bankruptcy court if the lawyer's duty of confidentiality was outweighed by some other duty. The lawyer had no such other duty here, because the fraud: (1) did not occur during the course of the attorney-client relationship; and (2) did not relate to the subject matter of the representation. Furthermore, the lawyer may not reveal the confidences "to establish the reasonableness of his fees" because the client did not dispute the fees. The lawyer therefore may not reveal the fraud on the bankruptcy court. As the Bar explained it, "the protection of client confidences and secrets is so fundamental to the attorney-client relationship that any exceptions to the bedrock principle must be strictly limited." 9/8/1995
1731

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1-Adversity to Current Clients

3-Multiple Representations on the Same Matter

17-Fraud on the Tribunal

18-Consent and Prospective Waivers

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A lawyer representing a client (in a criminal matter in which sentencing is pending) who admits that she just gave police a false identification (using her girlfriend's driver's license) while being arrested for driving while intoxicated: may not reveal the client's fraud on the third party (because it does not involve the subject matter of the representation); cannot represent (even with consent) both the client and her girlfriend because of the "inherent and direct conflict" between them; must abide by the client's decision if she is determined to remain silent about the incident on the court date for the driving arrest; may continue to represent the client in the sentencing phase of the original criminal matter but "must be careful not to mislead the court in any statements"; may not invite the court in the sentencing hearing to ask questions that would elicit information about the driving arrest incident; may not withdraw from representing the client in the underlying criminal matter because it would prejudice the client (by prompting the court to ask about the withdrawal); must advise the client of the risk that the lawyer might be obligated to reveal the driving arrest incident if asked direct questions by the court at the sentencing hearing.6/29/1999
1789

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14-Ownership of Files and Attorney Lien Issues

54-Insurance Defense Lawyers

56-Duty to Advise the Court

A lawyer representing a client (seeking Social Security disability benefits for "disabling mental impairments affecting both personality and judgment") who has obtained a report on the client prepared by the client's treating psychologist at the request of and at the expense of the client's long term disability insurance carrier: is bound by Rule 1.4's duty to communicate material facts to the client, if there is an existing attorney client relationship; must comply with Rule 1.16 if the attorney client relationship has ended; may not follow the carrier's direction about the report, if following the direction would violate the lawyer's ethical duties to the client; may be guided by Rule 1.14 if the client is suffering from an impairment (for instance, "while an attorney may never withhold a medical report from a client merely at the request of some other party, in rare instances, an attorney may appropriately consider whether the client is able to act in his own interest with respect to requesting the information"); may be governed by other substantive law covering medical records.2/20/2004
ABA-412

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

A lawyer who has "actual knowledge" that a client has violated a court order governing the transfer of assets (based either on "a communication by the client to the lawyer or on other information coming to the lawyer's attention that the lawyer reasonably believes to be reliable") must first review all statements the lawyer made to the court about the matter, and correct any representations the lawyer now knows to be untrue. The lawyer must also review the client's statements to the court, and take appropriate "remedial measures," which may include disclosure of the client's previous misstatements or withdrawal from the representation. If neither the lawyer nor the client has made false statements to the court, the lawyer must consider whether the continued appearance on the client's behalf amounts to assisting the client's fraud on the court. For instance, if a court order required the client to report certain transactions that the client did not report, the lawyers' continued appearance on behalf of the client "reasonably would be viewed as a continuing representation to the court that the client is in compliance with an order prohibiting disposition of assets." The same would be true if the client disposed of an asset that was the subject matter of litigation. On the other hand, the lawyer's continued representation would not violate the ethics rules if the client had disposed of a small amount of money but otherwise had adequate resources to satisfy a judgment. A lawyer who withdraws because he or she knows that the client "intends to make a false statement to the court or believes that her continued representation of the client would assist the client in a fraud on the court" may not disclose the false statement to successor counsel or the court unless the client consents. Although a lawyer must "take reasonable remedial measures" upon learning of a client's past perjury, a lawyer who withdraws from the representation before a client commits perjury may not disclose the client's intent. 9/9/1998
1583

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A lawyer who inadvertently receives an original court document (relating to the client's criminal conviction) must immediately return the document to the court.4/11/1994
0846

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

48-Criminal Defense Lawyers

56-Duty to Advise the Court

A prosecutor or government lawyer should not subpoena a lawyer in a criminal case or proceeding (including a grand jury proceeding) without court approval. (This rule was adopted by the Virginia Supreme Court on June 15, 1987, effective September 1, 1987).9/1/1987
1495

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

A Virginia lawyer may not ask a court to issue an unenforceable subpoena duces tecum addressed to a North Carolina resident, and may not request a show cause based on failure to comply. This conduct would violate the rule prohibiting a lawyer from engaging in dishonest conduct. 11/5/1992
1650

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

After the plaintiff and defendant settled a case based at least in part on the plaintiff's expert's deposition testimony, lawyers for both sides learned that the expert lied about professional qualifications "that formed the basis of his expert opinion." The Bar reiterates that false deposition testimony is fraud on a tribunal. However, not every misrepresentation made by a witness in a deposition is a "fraud upon the tribunal" -- disclosure is required only "to prevent a judgment from being corrupted" by the "unlawful conduct." If the false testimony about the plaintiff's expert's qualifications are "material to the opinion rendered by such expert" and therefore "corrupts the opinion," the fraud must be revealed to the tribunal "regardless of whether the case proceeds to trial or is settled." [Rule 3.3(a)(2) and Rule 4.2(b) require a lawyer to disclose facts if disclosure is necessary to avoid assisting a client's criminal or fraudulent acts.]9/8/1995
0561

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31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

After winning a motion, a lawyer prepared a decree accidentally broader than the court's ruling. Because the lawyer had not intentionally mis-drafted the decree, the lawyer may now assert a res judicata defense based on the overbroad decree. The Bar held that the lawyer must concede the circumstances of the drafting should the adversary raise it. [Rule 4.1(b) might require disclosure of the mistake if the disclosure is necessary "to avoid assisting a criminal or fraudulent act by a client."]4/10/1984
ABA-466

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23-Communicating with an Adversary - Miscellaneous

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

Although the line between "properly investigating jurors and improperly communicating with them" is "increasingly blurred," lawyers may (and in some states must) engage in a "passive review" of jurors' electronic social media (which is similar to "driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer's jury-selection decisions"). An electronically sent electronic source media ("ESM") feature notifying a juror that a lawyer has conducted such a search is not a prohibited "communication" to the juror (instead it "is akin to a neighbor's recognizing a lawyer's car driving down the juror's street and telling the juror that the lawyer had been seen driving down the street"). In contrast, lawyers may not send an "access request" to a juror, because that would be a prohibited communication ("akin to driving down the juror's street, stopping the car, getting out, and asking the juror for permission to look inside the juror's house because the lawyer cannot see enough when just driving past"). Trial judges can "dispel any juror misperception that a lawyer is acting improperly" when conducting such a search by discussing with jurors "the likely practice of trial lawyers reviewing jurors' ESM." Lawyers learning through a search of jurors' ESM that a juror has engaged in "criminal or fraudulent conduct related to the proceeding" must take remedial action, including reporting the misconduct to the court. The Ethics 2000 Commission apparently intended to expand the disclosure duty to such a person's "improper conduct," but Model Rule 3.3(b) is still limited to "criminal or fraudulent" conduct. Lawyers' disclosure duty upon learning of a juror's misconduct such as improper communications during jury service "will depend on the lawyer's assessment of those postings in light of court instructions and the elements of the crime of contempt or other applicable criminal statutes."4/24/2014
1580

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9-Government Lawyer Conflicts

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

An Assistant Attorney General may ethically argue that a prior case decision should control a hearing panel's decision even if the Assistant Attorney General knows that the earlier decision "does not reflect that it was the product of a settlement agreement and not the product of a panel opinion." 3/9/1994
ABA-446

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

32-Lawyers Acting in Other Roles (Miscellaneous)

56-Duty to Advise the Court

Because "the fact that a litigant submitting papers to a tribunal on a pro se basis has received legal assistance behind the scenes is not material to the merits of litigation," a lawyer "may provide legal assistance to litigants appearing before tribunals "pro se" and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance." The Committee does not share the concern raised by some that pro se litigants "are the beneficiaries of special treatment" and that pro se litigants' pleadings "are held to less stringent standards than formal pleadings drafted by lawyers." As one commentator has noted, a court recognizing a higher quality of pro se litigants' pleadings simply refrains from applying any "liberality in construction," because "liberality is, by definition, only necessary where pleadings are obscure." A lawyer failing to disclose assistance to a pro se litigant does not violate Model Rule 8.4(c) because the lawyer is not making any statement to the forum. A lawyer might be obligated by Model Rules 1.2 and 1.6 not to disclose such assistance. A lawyer who does not sign a pleading is not assuming any responsibility for the pleading. Lawyers' obligations to disclose such assistance may be governed by a jurisdiction's law or tribunal rule. [superseding ABA Informal Opinion 1414]5/5/2007
0542

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17-Fraud on the Tribunal

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

If a client does not abandon an intent to commit perjury, the lawyer must reveal it. The lawyer should reveal the client's intent to the court, not the Commonwealth's Attorney. 3/1/1984
1476

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1-Adversity to Current Clients

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

54-Insurance Defense Lawyers

56-Duty to Advise the Court

In an employment case, a lawyer may argue in the Circuit Court that the plaintiff's exclusive remedy was under the Worker's Compensation Act and at the same time argue to the Commission that the matter should be addressed by the Circuit Court. The lawyer's duty to diligently represent the client outweighed any "credibility problem" the lawyer's inconsistent positions might create, as long as "the validity of the rule [of law] is subject to legitimate dispute." The Bar analogized the inconsistent arguments to the filing of pleadings in the alternative. [This LEO was effectively overruled by Va. Code § 65.2-706.1 and Va. Code § 8.01-420.5.] 8/24/1992
1622

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17-Fraud on the Tribunal

27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

56-Duty to Advise the Court

Two lawyers represent a defendant in circuit court felony charges and in connection with district court capiases for failure to appear. The lawyers appear before the district court on the capias matter, and do not advise the court of the simultaneous felony charges in circuit court. One of the lawyers later obtains dismissal of the felony charges in circuit court on double jeopardy grounds. It is not per se improper for the defendant's lawyers to have failed to reveal to the district court that their client was also the subject of felony charges in the circuit court. However, a lawyer may not make an "affirmative representation which is untrue." The lawyers violated this rule by telling the district court judge that the capiases were matters "between defendant and the Court." Furthermore, the lawyer's conduct "falls short of the aspirational exhortations contained in EC 7-33, in that they failed to be aboveboard with the judges in both district court and circuit court." 2/17/1995
ABA-454

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

39-Miscellaneous

56-Duty to Advise the Court

Under Rule 3.8(d), a prosecutor must disclose all evidence or "information" known to the prosecutor that tends to "mitigate the guilt of the accused or mitigate the offense." Significantly, "Rule 3.8(d) is more demanding than the constitutional case law" -- because it requires the disclosure of evidence or information "without regard to the anticipated impact of the evidence or information on a trial's outcome." The disclosure obligation covers "information" as well as evidence. Furthermore, "[n]othing in the rule suggests a de minimis exception to the prosecutor's disclosure duty where, for example, the prosecutor believes that the information has only a minimal tendency to negate the defendant's guilt, or that the favorable evidence is highly unreliable." The disclosure obligation covers evidence and information "known" to the prosecutor, and does not require the prosecutor to conduct an investigation or review files to look for such information. The disclosure duty cannot be avoided by the defendant's consent to forego such disclosure, because "[a] defendant's consent does not absolve a prosecutor of the duty imposed by Rule 3.8(d), and therefore a prosecutor may not solicit, accept or rely on the defendant's consent."7/8/2009
ABA-370

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

31-Protecting and Disclosing Confidences and Secrets

56-Duty to Advise the Court

Unless the client consents, a lawyer may not reveal to a judge the limits of his settlement authority or advice to the client regarding settlement. The judge may not require the disclosure of such information. A lawyer may not lie in response to a direct question about his settlement authority, although "a certain amount of posturing or puffery in settlement negotiations may be an acceptable convention between opposing counsel." 2/5/1993

Copyright 2000, Thomas E. Spahn