The Conscience of a Jury is Alive!

By Monte Hester, October 2016

Occasionally, we must appear in court when our clients unexpectedly don’t. Under such circumstances, we must be careful as to what information we relay to the court regarding our clients’ non-appearance so we don’t violate RPC 1.6. RPC 1.6 prohibits lawyers from revealing client confidences or secrets, without the client’s consultation and consent.

Recently, the WSBA reprimanded an attorney because of his disclosures regarding his client during a motion to withdraw. The lawyer made specific representations about his client’s whereabouts when the client failed to appear for the hearing. The attorney was reprimanded because his affidavit revealed client confidences in violation of RPC 1.6.

Importantly, RPC 1.6 sets forth in what instances a lawyer may reveal confidences or secrets of a client. These situations are limited to (1) preventing the client from committing a crime, or, (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client. Generally, a lawyer is not entitled to reveal confidences that might get the client in trouble with the court. When faced with such a situation, a lawyer must not make any affirmative representations detrimental to the client. Rather, the appropriate approach would be to respectfully decline to answer the court’s questions unless the client has previously been fully advised and has consented to his/her lawyer answering such questions.

Counsel should also be aware that revealing client information also applies to a client’s criminal history. Formal Opinion #188, set forth in the Resources Book of the Washington State Bar Association, describes what to do surrounding such representations so as not to violate RPC 1.6(a). Reviewing this opinion gives some guidance on how to answer questions that might arise during a guilty plea or sentencing, as well as with respect to answering the court’s questions when a client fails to appear at court.

As we all know, when a client contacts an attorney they expect confidentiality, regardless of what the client says to the attorney so long as it does not fall within the exceptions of RPC 1.6. Accordingly, we must be careful when representing an absent client, or any client, when answering questions that, absent the client’s consent, would violate RPC 1.6. Being that the State Bar is always cognizant of a lawyer’s responsibilities toward his/her client and that disciplinary sanctions can be imposed, we must always consider the rules regarding client confidences before making any type of disclosure.