Ethics Opinion

Opinion 90-6 (Reconsidered)

FLORIDA BAR ETHICS OPINION
OPINION 90-6 (Reconsideration)
May 29, 2009
Advisory ethics opinions are not binding.
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:
Opinions:

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)
90-6 (withdrawn)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.