Your client has just been sentenced as a first-time DWI offender earlier this morning. Later in the afternoon, you are in another courthouse. Your same client is facing sentencing for another DWI. The driver’s abstract has not yet been updated to reflect that, based on the morning’s plea, your client is no longer a first-time offender. You validate the factual inaccuracy to the judge and prosecutor by commenting that the abstract was just run that day. Technically this is true, but you know it is no longer accurate. You and your client are the only ones in the courtroom that know. You believe it is your job to make sure your client gets the most favorable sentence possible, and you don’t want to be deemed “ineffective.” It works. Your affirmation misleads the court into believing that your client has never been convicted of a DWI, and he is sentenced as a first-time DWI offender – for the second time that day. Are you just zealously advocating for your client by failing to disclose the first DWI, or do your actions violate the rules of ethics? A New Jersey lawyer found himself in this situation and was censured.
Actual knowledge creates duty to correct court’s misinformation
The lawyer did not believe at the time of the hearing that he had a duty to inform the court or the prosecutor of his client’s DWI conviction earlier that morning based on State v. Kane, 2015 N.J. Super. Unpub. LEXIS 277 (App. Div. Feb. 17, 2015). In Kane, the Appellate Division rejected the argument that a defense attorney was unethical in failing to disclose a newly enacted statute that his client’s conduct violated, in addition to the driving offense for which he was entering his plea. The court found that it was the prosecutor’s responsibility to have been aware of the statute’s potential applicability.
New Jersey’s Disciplinary Review Board (“DRB”) found that Kane was inapplicable. Kane dealt with constructive knowledge and legal facts, but this case addressed the lawyer’s actual knowledge and candor concerning material and operative facts. The duty of candor toward a tribunal created a duty to correct the court’s misundertsanding to avoid deceiving the court into imposing an improper sentence.
The DRB instead pointed to In re Seelig, 180 N.J. 234 (2004), where the Court found an attorney violated Rule 3.3(a)(5) by failing to reveal to the court that the person involved in his client’s automobile accident had died, hoping the court would accept his client’s plea to motor vehicle offenses and precluding the indictable changes based on double jeopardy. The DRB found that “The Court observed that RPC 3.3(a)(5) “compel[s] a lawyer to act affirmatively against his or her client’s interests even when the primary responsibility for informing the court does not (or may not) lie with the lawyer.” Seelig, 180 N.J. at 253. Moreover, RPC 3.3(a)(5) “impose[s] a duty to disclose in order to prevent errors in decision making by a tribunal that [. . .] has been misled because it lacks information about material facts.” Ibid.”
Misrepresentation is not a permissible litigation tactic
The DRB found that the lawyer’s breach of his duty of candor leading to the court’s improper sentencing and his dishonesty in responding to the court was conduct prejudicial to the administration of the justice system, violating Rules 8.4(c), 8.4(d), and 3.3(a)(5) of the Rules of Professional Conduct. The DRB further found that the lawyer failed to understand that “misrepresentation cannot serve as a permissible litigation tactic, even when carried out in the name of zealous advocacy.”
Zeal or no zeal?
Each jurisdiction has their own take on when ethical boundaries are crossed in the name of zealous representation. While ABA Model Rule 1.3, titled “Diligence,” itself imposes no duty of “zealous representation,” Comment  to ABA Model Rule 1.3 still, in part, provides that “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” Some jurisdictions have started removing any requirement to act with zeal from their rules of professional conduct. Ohio, for example, removed the requirement to act “with zeal in advocacy upon the client’s behalf,” from its Comment , reasoning that “[z]ealous advocacy is often invoked as an excuse for unprofessional behavior.“ Likewise, New Jersey’s Rule 1.3 simply provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The word “zeal” does not appear. Conversely, Georgia’s Comment  still requires a lawyer to act with zeal in advocacy on the client’s behalf, although this would not suggest that Georgia lawyers may engage in conduct that is misleading to a tribunal.
Regardless of where your jurisdiction falls on the spectrum, always keep in mind that your desire to zealously represent your client should not come at the sake of violating your other ethical duties—particularly your duty of candor toward the tribunal.