The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
OPINION 90-6 (Reconsideration)
May 29, 2009
OPINION 90-6 (Reconsideration)
May 29, 2009
A lawyer who learns that a criminal defendant is proceeding under a false name before the lawyer agrees to represent the criminal defendant who cannot persuade the client to correct the name must decline representation. A lawyer who learns that a criminal defendant who is an existing client is proceeding under a false name must withdraw from representation and must admonish the client not to commit perjury, but cannot disclose the client’s use of the false name to the court unless the client makes an affirmative misrepresentation to the court regarding the name.
Note: This opinion was approved by The Florida Bar Board of Governors on May 29, 2009.
RPC: 4-1.2(d), 4-1.4, 4-1.6(b), 4-1.16(a), 4-3.3, 4-3.4(c), 4-4.1, 4-8.4(d)
Opinions: 90-6 (withdrawn)
In former Florida Ethics Opinion 90-6, a criminal defense attorney inquired about an attorney's obligation upon discovering that a client who is a defendant in a pending criminal proceeding gave an alias when arrested, and proceedings have been brought under the alias. The attorney asked whether this information must be revealed to the court and, if so, whether the attorney must inform the court of the client's true identity. Former Florida Ethics Opinion 90-6 concluded that a criminal defense attorney who learns that his or her client is proceeding under a false name may not inform the court of this fact due to the attorney-client privilege, the client's constitutional right to effective assistance of counsel, or the client's constitutional privilege against self-incrimination, but that the attorney may not assist the client in perpetrating or furthering a crime or a fraud on the court. The opinion further concluded that if the court requests information about the client's identity or record, "the client and defense counsel may answer truthfully (if the client, after consultation with counsel, decides that doing so is in his or her best interests) or may decline to answer on the basis of any applicable privilege."
The Committee withdrew Florida Ethics Opinion 90-6 at its March 16, 2007 meeting. In order to provide guidance to Florida Bar members on this issue, the Board of Governors issues this opinion.
Rule of Professional Conduct 4-3.3(a) states in pertinent part:
(a) False Evidence; Duty to Disclose. 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[.]
Additionally, Rule 4-1.2(d) prohibits a lawyer from assisting a client in criminal or fraudulent conduct, while Rule 4-8.4(c) prohibits a lawyer from "dishonesty, fraud, deceit, or misrepresentation."
The mere act of filing pleadings under the false name used by the client or responding to the alias when called at a docket sounding does not involve misrepresentation to the court. However, the lawyer cannot permit the client to lie and therefore, if asked, the client must give his or her true name or invoke a privilege in refusing to respond.
The Board will address the following scenarios: 1) the lawyer learns in the initial consultation before the lawyer accepts representation that a criminal defendant is being charged and proceeding under a false name; and 2) the lawyer learns after representation begins that a criminal defendant client is being charged and proceeding under a false name.
If the lawyer learns that the client has given a false name at the outset of the representation, before the lawyer has accepted representation of the criminal defendant in the case, the lawyer must decline to represent the client on the basis of the false name unless the prospective client agrees to disclose to the court that the client is proceeding under a false name. See Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3 (a)(2) and (b), 4-3.4(c), 4-4.1, and 4-8.4, Rules of Professional Conduct.
If the lawyer learns of the false name after representation has begun, the lawyer should inform the client that the lawyer cannot assist the client in misleading the court regarding the client's identity, and the lawyer should attempt to persuade the client to disclose that the client is proceeding under a false name. Rules 4-1.2(d), 4-1.4, 4-1.6(b)(1), 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct. If the client refuses to disclose the information and insists that the client will maintain the false name throughout the case, the lawyer must move to withdraw from the client's representation. Rules 4-1.2(d), 4-1.4, 4-1.16(a), 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct. The lawyer must counsel the client not to commit perjury. Rules 4-1.2(d), 4-1.14, 4-3.3(a)(2) and (b), 4-3.4(c), and 4-8.4, Rules of Professional Conduct.
If the court declines to permit withdrawal, the lawyer must continue the representation. Rule 4-1.16(c), Rules of Professional Conduct. The lawyer may not inform the court of the false name except when the client affirmatively lies to the court concerning his or her true name.
All of the above scenarios presuppose that there is nothing in the court file to indicate that the client has been charged and is proceeding under a false name. If the client has been charged as a "John Doe" or "Jane Doe" and clearly is openly refusing to disclose his or her identity, there is no misrepresentation to the court and the above rules are not applicable. See Rule 4-3.4(c). Under this circumstance, the lawyer need not specifically disclose to the court that the client is proceeding under a false name. Rule 4-3.3, Rules of Professional Conduct. Additionally, if the court file clearly indicates that the client is known by multiple names, then the court is on notice that the client may be proceeding under a false name and no remedial measures by the criminal defense lawyer are required.