State Bar of Arizona Ethics Opinions

00-02: Confidentiality; Candor Toward Tribunals; Criminal Representation; Perjury
3/2000

This Opinion reviews the ethical quandaries caused in criminal plea agreements when a lawyer’s duty of confidentiality may be in conflict with a lawyer’s duty of candor to the court in a variety of factual scenarios. [ERs 1.6, 3.3]

FACTS[1]

A public defender's office is faced with situations involving the conflicts between a lawyer's duty of confidentiality to clients and the duty of candor to the court.  The essential question is what is a criminal defense lawyer's ethical obligation when his client has made misrepresentations or material omissions to a court?  In particular, the public defender's office describes the following situations and poses the following questions:

1. Scenario No.1: 

The client is charged with a first time driving under the influence charge (DUI).  In a confidential office conference, the client advises his attorney that he has a prior DUI conviction within five years that the State has not alleged.  The client wishes to accept a first time plea offer that requires the client to sign a plea agreement containing the following language:

I, [CLIENT/DEFENDANT], have read this agreement with the assistance of counsel, understand its terms, understand the rights I give up by pleading guilty in this matter, and agree to be bound according to the provisions herein.  I further swear or affirm that I have not been convicted of any DUI within the 5 years preceding this arrest, nor did this offense result in serious physical injury to another.

The attorney also is required to sign the plea agreement, and certify the following:

I have discussed this case and the plea agreement with the Defendant.  I have advised him/her of his/her rights and the consequences of his/her plea and concur in entering this plea.

The questions relating to this fact scenario are as follows:

a. What are the ethical obligations of the attorney if the client insists on taking the plea despite the attorney advising the client that he cannot legally sign the above statement?

b. If the client has a prior DUI conviction, but the conviction occurred after the arrest in the current case rather than "preceding this arrest", what ethical obligations arise?

c. Is there an obligation to inquire as to whether or not the client has a prior DUI conviction or is it acceptable to wait for the client to initiate such a discussion?  Is the attorney providing effective assistance of counsel if she fails to inquire about such information and advises the defendant of the potential consequences of having a prior conviction?

d. If the attorney crossed out the language regarding prior convictions in all plea offers, would that resolve the conflict?

2. Scenario No. 2:

A DUI client has a first time plea offer and advises his attorney that he has a prior DUI conviction within five years that has not been alleged by the State.  Rather than take the plea offer, which requires signing the above statements, the client wishes to plead guilty to the charges directly to the judge.  If the judge asks no questions regarding prior convictions, can the attorney stand by and allow the client to plead guilty?

a. If the judge asks the attorney whether there is a prior DUI conviction, is it sufficient for the attorney to answer that "there is none alleged"?

b. If the judge asks the client and he states that he has no prior DUI convictions, what obligation does this impose on the attorney to investigate the accuracy of the client's statement?

3. Scenario No. 3:

A DUI client is offered a first time DUI plea and advises his attorney that he had a prior DUI conviction six years ago.  In checking the case tracking system in the office, the attorney discovers the client was previously represented by her office on a DUI and that the offense date and conviction are within five years, not six as recalled by the defendant.

a. Can the attorney allow the client to accept the plea with the language noted in hypothetical 1?

b. What ethical obligations arise if the defendant pleads guilty to the charges directly to the judge and answers a question from the judge that he does not have a DUI within five years?

c. If no question regarding priors is asked, is there any ethical conflict?

4. For all of the foregoing scenarios does a defendant's right to effective assistance of counsel and right against self-incrimination override the attorney's duty of candor to the court?

RELEVANT ETHICAL RULES

ER 1.2. Scope of Representation

(a) A lawyer shall abide by a client's decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult with the client as to the means by which they are to be pursued.  A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter.  In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the objectives of the representation if the client consents after consultation.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

(e) When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct.

ER 1.6. Confidentiality of Information

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2).

(b) A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

(c) A lawyer may reveal the intention of his client to commit a crime and the information necessary to prevent the crime.

(d) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

ER 3.3. Candor Toward the Tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;

(2) except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) except as required by applicable law, offer evidence that the lawyer knows to be false.  If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by ER 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.
  
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

ER 8.4 . Misconduct

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of
applicable rules of judicial conduct or other law.

RELEVANT ARIZONA ETHICS OPINION  

Ariz. Op. 92-02

HISTORICAL PERSPECTIVE

These scenarios and questions raise the oft-debated issue of whether an advocate for a criminally accused has the same duty of disclosure toward a tribunal as does a lawyer for a civil litigant.  Given the uniquely adversarial nature of a criminal defendant being prosecuted by the state and given the express protections that are afforded a criminal defendant by both the federal and state constitutions, we would submit that the criminal defense lawyer's duty of disclosure as prescribed by the ethical rules, while perhaps not lessened, may, in certain circumstances, be trumped by the protections afforded his client by the Constitution.

Before addressing the questions posed it is necessary to understand the scope of the ethical and constitutional obligations that a lawyer owes to his client and to the legal system, and the potential conflicts that emerge.  "A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice."  Preamble, Arizona Rules of Professional Conduct, Ariz. R.S.Ct. 42.  A client is entitled to zealous and competent representation.  This includes a duty of confidentiality that is subject to breach in only the rarest of circumstances.  See ER 1.6.  Arizona's Rules of Professional Conduct, however, impose a duty of candor towards the tribunal that is both express and demanding and, in certain circumstances, supersedes the duty of client confidentiality set forth in ER 1.6.  See ER 3.3.  Indeed, it is at the convergence of these dual obligations that the most vexing ethical questions arise.  "Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an upright person while earning a satisfactory living."  Preamble, Arizona Rules of Professional Conduct.

In the criminal arena, these ethical problems are exacerbated.  In a criminal case, unlike in a civil case, the criminal defendant is afforded unique and fundamental protections by the federal and state constitutions.  Chief among them are the Fifth Amendment right to be free of self-incrimination and to testify on his own behalf and the Sixth Amendment right to effective assistance of counsel.  In the situation where a client proposes to submit false information to a tribunal, a lawyer finds himself in the untenable position of either: (1) preserving his client's confidences and perhaps his constitutional rights or (2) observing his ethical obligation to act with candor toward the tribunal.  The conflict is palpable:

The United States Constitution, through the fifth and sixth amendments, recognizes and mandates that the accused in a criminal proceeding has the right to rely on the advice of zealous and competent counsel.  Inherent in this right is the accused's ability to divulge personal and confidential information to his lawyer so that he may receive the best possible representation.  A client's communications should remain confidential except in the most narrow of circumstances.  Any implication that the criminally accused could not fully rely on his lawyer to keep his confidences triggers serious constitutional ramifications.  The defense lawyer's first responsibility is to her client.  She is duty bound to represent the client and she must now "champion against a hostile world" the rights of that client and must do so zealously.

Tally, Setting the Record Straight:  The Client with Undisclosed Prior Convictions, at 194 (appearing in Uphoff, Ethical Problems Facing the Criminal Defense Lawyer (ABA 1995)); but see Nix v. Whiteside, 475 U.S. 157, 173 (1986) (criminal defendant's constitutional right to testify and to effective assistance of counsel does not extend to testifying falsely).

As Justice White and others have observed, this obligation of a criminal defense lawyer to his client is unique in the sense of the competing demands it places on the lawyer:

The role of the defense counsel in the adversary system requires conduct that at times is at odds with the system's search for the truth.  While law enforcement officers must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime . . . defense counsel has no comparable obligation to ascertain or present the truth . . . Defense counsel need present nothing even if he knows what the truth is.  He need not furnish any witness to the police, or reveal any confidences of his client, or furnish any other information to help the prosecutor's case.

Id. at 196 (citing United States v. Wade, 388 U.S. 218, 256-57 (1976) (White, J., concurring in part and dissenting in part)).  How does the constitutional mandated role of a criminal defense lawyer square with his ethical obligations?  There are few bright lines and seemingly fewer satisfactory solutions.

First and foremost, an attorney that knows that his client will be committing perjury or making a material misrepresentation to the court has an ethical obligation to counsel his client to try and prevent the perjury.  ER 1.2(e) provides that "When a lawyer knows that a client expects assistance not permitted by the Rules of Professional Conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer's conduct."  See Nix v. Whiteside, 475 U.S. at 169 ("It is universally agreed that at a minimum the attorney's first duty when confronted with a proposal for perjurious testimony is to attempt to dissuade the client from the unlawful course of conduct."); ABA Opinion 87-353 (1987).  The lawyer should consult with the client regarding all of the potentially negative legal ramifications of making material misrepresentations to the court.  The lawyer should also consult with the client regarding the limitations imposed upon the lawyer by the Rules of Professional Conduct.

Assuming the client refuses to change his course of action, the lawyer's options are:  (1) to withdraw from the case; (2) to disclose the potential misrepresentation; or (3) to maintain his client's confidences but do nothing to actively further his client's misrepresentation to the court.

Both Arizona's ethical rules and applicable case law recognize that there is an inherent tension in complying with the ethical rules and diligently representing the client who is a criminal defendant.  For example, ER 3.3(a)(2) and (4) specifically note that "except as required by applicable law," "A lawyer shall not knowingly . . . fail to disclose a material fact to a tribunal . . . to avoid assisting a criminal or fraudulent act by the client . . . [or] . . . offer evidence that the lawyer knows to be false. . . . " (emphasis added).  The comment to ER 3.3 addresses the issue of perjury by a criminal defendant and notes that a defense lawyer's ethical obligations in this context are still in a state of flux, i.e., "Defense counsel's ethical options, as circumscribed by the criminal defendant's fundamental constitutional rights at trial, are still in the process of clarification.  See, e.g., Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978); State v. Jefferson, 126 Ariz. 341, 615 P.2d 638 (1980)."  In State v. Lee, 142 Ariz. 210, 689 P.2d 153 (1984) moreover, the Arizona Supreme Court summarized the law of other jurisdictions and the observations of commentators and observed that, although the presentation of false testimony from persons other than the defendant was categorically unethical, the issue was not clear cut as it pertained to the testimony of the defendant himself, "[T]he criminal defense lawyer has a general duty not to use false testimony of persons other than the defendant."  But see State v. Soule, 168 Ariz. 134, 811 P.2d 1071 (1991) (dicta, "We do not believe that the defendant has a right to lie at trial or a right to solicit his attorney's aid in executing such a defense strategy.  See Nix v. Whiteside, 475 U.S. 157, 173, 106 S.Ct. 988, 997, 89 L.Ed.2d 123, 138 (1986) . . . ").

As noted, the United States Supreme Court also touched on this issue in Nix v. Whiteside, 475 U.S. 157 (1986) and, took the position that disclosure is required, "Both the Model Code and the Model Rules do not merely authorize disclosure of client perjury; they require it."[2]  The Nix v. Whiteside decision came under immediate scrutiny, not only from courts and commentators, but also from the concurring Justices who questioned the Court's authority to "establish rules of ethical conduct for lawyers in state courts."  ABA/BNA Lawyer's Manual on Professional Conduct, at 61-412.  Ultimately, the Court's holding "was based upon a finding that the defendant suffered no prejudice from the lawyer's actions, and not upon a finding that the lawyer was compelled to act as he did by the relevant rules of ethics."  Id.  Since the Nix decision, however, Arizona's Supreme Court and the Ninth Circuit have appeared to consistently hold that a criminal defendant has no right to the affirmative assistance of counsel in offering false or perjured testimony.  See United States v. Omene, 143 F.3d 1167 (9th Cir. 1998); United States v. Mezzanato, 998 F.2d 1452 (9th Cir. 1993); State v. Soule, 168 Ariz. 134, 811 P.2d 1071 (1991).

The Committee confronted a similar situation in Ariz. Op. 92-02.  This Opinion dealt with a criminal client's desire to use a false name in a pending criminal proceeding.  The Committee ultimately concluded that "[T]he inquiring lawyer should advise the client that he cannot use a false name with the court.  If the client insists on using a false name, the lawyer must move to withdraw citing irreconcilable differences, but not telling the court of the client's use of a fictitious name.  If the motion to withdraw is denied, then counsel must proceed but cannot rely upon or argue the client's false statement in his or her further representation of the client." Id. at 7.

The preceding discussion, indeed most discussions involving client perjury, address issues in the trial context.  The issues confronting defense lawyers in the sentencing context, however, remain the same.  With this in mind, the Committee addresses the specific questions posed.

OPINION

QUESTION 1(a).  What are the ethical obligations of the attorney if the client insists on taking the plea and signing the plea agreement despite the attorney advising the client that the attorney cannot legally sign the plea agreement with the language referenced in Scenario No. 1?

Perhaps the question posed should not be whether the lawyer cannot "legally" sign the affirmation statement, but rather whether the lawyer can "ethically" sign the affirmation statement.  ER 3.3(a)(1) specifically provides that "A lawyer shall not knowingly make a false statement of material fact or law to a tribunal."  Here, the lawyer is signing a statement in which he is affirming that he has "discussed this case and the plea agreement with the defendant [and has] advised him/her of his/her rights and the consequences of his/her plea and concur in entering this plea."  The issue is whether or not the lawyer ethically is at risk in noting that he or she concurs in entering the plea agreement.[3]

Initially, ER 1.2(a) provides that "In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered . . . "  Here, the lawyer presumably has discussed the case and plea agreement with his client and advised him of all of his rights and consequences of entering the plea.  Although the client is making a misrepresentation to the court by stating that he/she has not been convicted of any DUI offense within the five years preceding arrest, the lawyer is not making that misrepresentation.

ER 1.2(d), further provides, however, that "A lawyer shall not . . . assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . "  Is concurring in the entry of a plea agreement that contains a material misrepresentation by a client the kind of assistance that is prohibited by ER 1.2(d)?  If so, and the answer presumably is yes, the question then becomes whether or not the criminal defense lawyer has a constitutional obligation to disregard the ethical rule in order to preserve the attorney-client privilege and to preserve his client's right to effective assistance of counsel.[4]  In this situation, we believe the lawyer's ethical duties are guided by ER 1.2(d), ER 1.6(a) and ER 3.3(a)(2).

ER 1.2(d) provides that "A lawyer shall not . . . assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . "  The comments to ER 1.2 suggest that when the client's course of action is continuing, "The lawyer is not permitted to reveal the client's wrongdoing, except where permitted or required by ER 1.6."  The lawyer is further admonished not to run the risk by providing advice to the client regarding concealing the fraudulent conduct.  Given the alternative, the Comment to ER 1.2 suggests that withdrawal may be required.

ER 1.6(a) on the other hand, specifically provides that "A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b), (c) and (d) or ER 3.3(a)(2)."  ER 3.3(a)(2) provides that "A lawyer shall not knowingly. . .except as required by applicable law, fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client."  The "applicable law" is a specific reference to the relationship between a criminal defendant and her lawyer.  See Comment to ER 3.3.  The Comment suggests that applicable law is still in the process of clarification, but it appears that at least in Arizona and the Ninth Circuit, that clarification militates in favor of strict adherence to the ethical rules.

Under the circumstances, we believe a lawyer cannot sign a plea agreement stating that he concurs in the entry of a plea that he knows contains a material misrepresentation by his client.

QUESTION 1(b).  If the client has a prior DUI conviction, but the conviction occurred after the arrest in the current case rather than "preceding this arrest" what, if any, ethical obligations arise from signing the plea agreement?

Under these circumstances, where the client is not making a misrepresentation, we do not believe the lawyer has any obligations of disclosure.  First, the lawyer is not making a false statement of material fact or law.  Second, the lawyer is not assisting in a criminal or fraudulent act by the client.  Third, the lawyer is not offering evidence known to be false.  At some point, a criminal defense lawyer is entitled to rely on the advocacy of the state to make its case.  See Hall, Professional Responsibility of the Criminal Lawyer (2d ed.1996), at § 3.11; ABA Op. No. 87-343 (1987).  If a question is posed that a client answers truthfully, the lawyer has no obligation to offer evidence that would correct any erroneous impression that might be left by the answer, and, in fact, is precluded from doing so by ER 1.6.[5]

QUESTION 1(c).  Does the lawyer have an obligation to inquire as to whether or not the client has a prior DUI conviction or is it acceptable to wait for the client to initiate such a discussion?  Is the attorney providing effective assistance of counsel if she fails to inquire about such information and advise the defendant of the potential consequences of having a prior conviction?

ER 1.1 provides that "A lawyer shall provide competent representation to a client.  Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."  ER 1.2(c) states that "A lawyer may limit the objectives of the representation if the client consents after consultation."  It is incumbent upon a criminal defense lawyer to fully consult with his or her client about the matter at hand including the ramifications of having a prior DUI conviction.  This consultation also may require the lawyer advising the client of the lawyer's responsibilities under ER 1.2(d) and (e), ER 1.6(a) and ER 3.3(a) and advising the client that the lawyer cannot make any affirmative, material misrepresentations to the court.  Whether or not failure to so advise the client is ineffective assistance of counsel is a legal question beyond the purview of this Committee.

QUESTION 1(d).  If the attorney crossed out the language regarding prior convictions in all plea offers, would that resolve the conflict?

Yes.  Under these circumstances the client would not be making a misrepresentation to the court, and, therefore, the lawyer would not be violating ER 3.3(a)(2).[6]

QUESTION 2(a).  A DUI client has a first time plea offer and advises his attorney that he has a prior DUI conviction within five years that has not been alleged by the state.  Rather than take the plea offer which requires signing the above statements, the client wishes to plead guilty to the charges directly to the judge.  If the judge asks no questions regarding prior convictions, can the attorney stand by and allow the client to plead guilty?

Yes.  In this situation the client is not making a material misrepresentation and, therefore, the lawyer is not assisting in a fraud on the court.

QUESTION 2(b).  If the judge asks the attorney whether there was a prior DUI conviction, is it sufficient for the attorney to answer that "there is none alleged"?

Yes.  Such a response, however, is akin to making a motion to withdraw in the face of client perjury in the sense that it flags for the court that something is amiss.  Nonetheless, however unsatisfactory this resolution, we believe it violates no ethical rule to answer as specifically posed by the question.

QUESTION 2(c).  If the judge asks the client and he states that he has no prior DUI convictions, what obligation does this impose on the attorney?

None.  In this case the attorney is not even assisting in the presentation of testimony.  This is akin to allowing a client to testify in narrative form.  Also, the lawyer has learned of the prior DUI from an attorney-client communication and, therefore, may not reveal it.  See ER 1.6.

QUESTION 3(a).  A DUI client is offered a first time DUI plea and advised his attorney that he has a prior DUI conviction six years ago.  In checking the case tracking system in the office, the
attorney discovers the client previously was represented by her office on a DUI and that the offense date and conviction are within five years, not six as recalled by the defendant.  Can the attorney stand by and allow the client to accept the plea with the language noted in hypothetical 1?

No.  See the answer to Question 1(a).

QUESTION 3(b).  What ethical obligations arise if the defendant pleads guilty to the charges directly to the judge and answers a question from the judge that he does not have a DUI within five years?

None.  As with the scenario posed by question 2(c), the attorney is not assisting in the presentation of testimony.  This is akin to allowing a client to testify in narrative form.  Also, the lawyer has learned of the prior DUI from an attorney-client communication, thus precluding its disclosure.  ER 1.6.

QUESTION 3(c).  If no questions regarding priors are asked, is there any ethical conflict?

No.

QUESTION 4.  Does a defendant's right to effective assistance of counsel and right against self-incrimination override the attorney's duty of candor to the court?  If so, when?

Because this question does not pose a specific factual question, the Committee cannot discuss it.
__________________

[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  Ó State Bar of Arizona 2000

[2]In Nix v. Whiteside, the lawyer representing the defendant in a murder case was told by his client that he believed that although he had not seen a gun in the deceased's hands when he was stabbed, that he believed the deceased had a gun.  Shortly before trial the defendant told the lawyer that he intended to testify that he had seen something metallic in the hand of the deceased shortly before his demise.  Counsel told the defendant if he insisted on testifying falsely the lawyer would advise the court that he felt respondent was committing perjury and he would seek to withdraw from representation.  The defendant, thus, did not testify that he saw something metallic in the hands of the deceased and was convicted of murder.  After the conviction, the respondent's appeal to the Iowa Supreme Court was denied.  After seeking federal habeas corpus review, the United States Supreme Court held that the Sixth Amendment right of a criminal defendant to assistance of counsel is not violated when a lawyer refuses to cooperate with the defendant in presenting perjured testimony at his trial.  The Court determined that counsel's duty of loyalty to, and advocacy of, the defendant's cause is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for the truth.

[3] Black's Law Dictionary defines concur as "to agree; to consent.  In a judicial opinion, to agree with the judgment in the case…or the opinion of another judge, but often for different reasons or through a different line of reasoning."  Black's Law Dictionary, 1, 286 (7th Ed. 1999).  The dilemma for the defense attorney is whether or not concurring in the entry of the plea is deemed to be the equivalent of vouching for the defendant or for the defendant's statements in accepting a plea.  See Footnote 6 at page 11.

[4] See Comment to ER 8.4 ("A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists.")  A lawyer's professional responsibilities are obligations imposed by law.  If a lawyer has a good faith belief that an obligation imposed by an ethical rule is not applicable, a lawyer may refuse to comply with that obligation.

[5] But see Cincinnati Bar Assn. v. Nienabar, 687 N.E.2d 678 (OH 1997) (Obligation of confidentiality arises when lawyer learns information from client, not from independent source.  Lawyer disciplined for affirmative misrepresentations to court and for failing to correct record with information learned by lawyer independent of attorney-client communication.)

[6] The more subtle issue is whether the state's solicitation of a defense attorney's concurrence in writing in the entry of a plea is appropriate.  ER 1.2(a) requires a lawyer to consult with his client regarding the plea to be entered.  The decision to accept the plea is the client's, not the lawyer's.  Other than confirming that the lawyer has fully consulted with his client regarding the ramifications and consequences of the plea, the defense lawyer would appear to be under no obligation to "concur" in the entry of the plea, at least to the extent that the lawyer's concurrence is deemed to be the equivalent of vouching for the defendant.