When Silence Isn’t Golden: Misleading a Court by Omission
LACBA Update, May 2015
By Evan A. Jenness, a criminal defense attorney who is a past chair and member of the LACBA Professional Responsibility and Ethics Committee, and co-chair of the Ethics Advisory Committee of the National Association of Criminal Defense Lawyers. The opinions expressed are her own.
The attorney-client privilege and broader duty of confidentiality are fundamental to attorneys’ obligations to clients. California Business and Professions Code Section 6068(e)(1) requires counsel “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client.” California Rule of Professional Conduct 3-100 (Confidential Information of a Client) incorporates Section 6068(e)(1). The concept of “confidences and secrets” is expansive—the “ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge.” Cal. State Bar Formal Op. No. 1981-58 (citation omitted). Other than the limited discretionary exception in Rule 3-100(B) (criminal acts likely to result in death or serious bodily harm), counsel’s lips are sealed as to any “information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client.” State Bar Formal Op. No. 1981-58.
Maintaining confidentiality often serves clients well for strategic reasons, too. Adages such as “less is more” reinforce an intuitive response to remain mute in such situations. Perfecting this instinct in judicial proceedings requires identifying what may, at least sometimes, be a fine line between silence and deception. Crossing that line, even if motivated by the worthy goal of protecting a client, may lead to disciplinary consequences, contempt, or conceivably even criminal charges.1
When it comes to omissions, in contrast to affirmative misrepresentations, the Rules of Professional Conduct draw a somewhat fuzzy line. Rule 5-200 (Trial Conduct) provides: “In presenting a matter to a tribunal, a member: (A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with the truth; [and] (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of facts or law….” Similarly, Business and Professions Code Section 6068(d) requires counsel to “employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”
As stated by the California Supreme Court, it is “settled that concealment of material facts is just as misleading as explicit false statements, and accordingly, is misconduct calling for discipline.” Di Sabatino v. State Bar (1980) 27 Cal.3d 159, 162-63. Deceit may be committed by an outright affirmative falsehood or by concealment of a material fact that counsel has a duty to disclose. Daily v. Superior Court (1935) 4 Cal.App.2d 127, 131 (“Deceit…may consist in suppression of that which it is one’s duty to declare….”); Franklin v. State Bar (1986) 41 Cal.3d 700, 709 (“concealment of a material fact ‘misleads the judge as effectively as a false statement’”), quoting Grove v. State Bar (1965) 63 Cal.2d 312, 315 (“No distinction can therefore be drawn among concealment, half-truth, and false statement of fact.”) (per curiam).
So where is the line between the “inviolate” duty of preserving confidences and secrets, and mandated disclosure to avoid misleading a court? The facts in Grove, 63 Cal.2d 312, present what might be viewed as an easy case. When opposing counsel failed to show up at a hearing, Grove acted as if the non-appearance was a default even though the lawyer had called earlier asking for a continuance because he could not get to Los Angeles in time for the hearing. Grove’s failure to inform the court, and treating the non-appearance as a default, violated Business and Professions Code Sections 6068(d), 6103, and 6106. Grove, 63 Cal.2d at 315.
The facts in Di Sabatino, 27 Cal. 3d 159, however, present a much closer call. Criminal defense counsel repeatedly sought a bail reduction for his incarcerated client, as is permitted. The trouble arose when he failed to tell a night magistrate about his two unsuccessful bail motions earlier that day. The California Supreme Court affirmed the State Bar Court, which disciplined him after finding the omission violated Business and Professions Code Section 6068(d) and a former professional conduct rule. Dissenting justices stated that a “trivial incident in which the petitioner was zealously, and legally, serving the interests of his clients and no self-interest has been magnified out of all proportion.” Di Sabatino, 27 Cal. 3d at 164-65.
Divining a clear principle underlying Di Sabatino may be a challenge since no law or rule required the disclosure, and the magistrate never inquired. In Crayton v. Superior Court (1985) 165 Cal.App.3d 443, the court tried. In Crayton, the court held that a defendant pleading to a misdemeanor had no duty to disclose pending felony charges, and distinguished Di Sabatino by explaining that it involved a statutory duty directed at lawyers, and “counsel in that case actually engaged in an affirmative presentation of facts to obtain judicial action and concealed material facts of which he knew the magistrate was not otherwise aware.” Unfortunately, as the Crayton court acknowledged, “the equation of passive concealment with affirmative misrepresentation to create a duty to disclose is circular reasoning.” Id., 165 Cal.App.3d at 451.
Fortunately, the need for disclosure seems more obvious in other leading decisions. In Sullins v. State Bar (1975) 15 Cal.3d 609, counsel represented the executor in a probate case. In an effort to increase his contingency fee, he failed to inform the court of the material fact that an interested party had renounced his interest in the estate, instead arguing that an increased fee was warranted because the matter was “fiercely contested.” This was a fraud on the court and violated Business and Professions Code Sections 6103, 6106, and 6128. In Arm v. State Bar (1990) 50 Cal.3d 763, misconduct was found where a lawyer who was about to begin a 60-day disciplinary suspension failed to mention it when consulting with the court about scheduling a hearing, and instead said he would be available on a date when he would be unable to practice. In Davidson v. State Bar (1976) 17 Cal.3d 570, misconduct was found where counsel appeared ex parte seeking custody of a child and failed to inform the court—in response to judge’s inquiry—that he had a phone number at which his client could be reached.2 See also Glade v. Glade (1995) 38 Cal. App. 4th 1441, 1457, n. 16 (criticizing counsel for lack of candor in not telling court about existing stay order even though counsel believed it was invalid and order’s proponent was present, since court would not hear from the latter because he had arrived late); Matter of Jeffers (1994) 3 Cal. State Bar Ct. Rptr. 211 (disciplining counsel for seeking to mislead settlement judge by claiming his client wanted to proceed to trial, rather than promptly disclosing client had died), discussed in Diane Karpman, “Balancing Professional Duties Can Be Like Walking a Tightrope,” California State Bar Journal (June 2010).
Particularly in fast-moving judicial proceedings, it may sometimes be a challenge to balance the duties of confidentiality and candor by accurately identifying the line between silence and deception. However, relevant authorities suggest this: proceed with great caution in making so-called pregnant omissions—that is, omitting material information where doing so implies incorrect information in light of affirmative representations, or the surrounding circumstances. Beyond that, “silence is golden” where it best serves clients’ interests and no specific obligation mandates disclosure.
1 See Cal. Bus. & Prof. Code §§6103 (“willful disobedience or violation” of court order, and any violation of attorneys’ oath or duties, “constitute causes for disbarment or suspension”); 6106 (acts “involving moral turpitude, dishonesty or corruption” constitute cause for disbarment/suspension); 6067 (requiring counsel “faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability”); 6128(a) (misdemeanor for counsel to engage in or consent to “any deceit or collusion, with intent to deceive the court or any party”).
2 Cf. San Diego County Bar Ass’n Legal Ethics Op. No. 2011-11 (advising that if a court asks whether counsel knows why a fugitive client is not in court, counsel should respectfully decline to answer, citing the ethical duty of confidentiality).
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