SBM - State Bar of Michigan


May 28, 1993


    A lawyer has no duty to inform the prosecutor's office of its failure to initiate criminal charges against the lawyer's client, even though the initiation of the charges was part of a negotiated plea agreement between the lawyer and the prosecuting attorney.

    References: MRPC 1.2(c), 3.3(a), 8.4(c); RI-55, RI-56, RI-88.


A lawyer's client was charged with a misdemeanor. As a result of plea negotiations with the prosecuting attorney's office, it was agreed that the misdemeanor case would be dismissed and recharged as a felony. As part of the plea agreement, the prosecuting attorney's office would agree to a "delay of sentence," which would result in the ultimate dismissal of the felony. After the misdemeanor case was dismissed, through an apparent oversight, no felony charges were initiated. The client has directed the lawyer to do nothing regarding notification to the prosecuting attorney's office. The lawyer asks whether an obligation exists to inform the prosecuting attorney's office of the oversight.

MRPC 1.2(c) states:

    "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal 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."

MRPC 3.3(a) states:

    "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;

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

      "(4) 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."

The issues under both of these rules are whether the client's conduct constitutes a criminal or fraudulent act and, if so, whether the lawyer's silence would constitute assistance in furtherance of such criminal or fraudulent act.

While the Rules impose on a lawyer a duty to speak or act in certain limited circumstances, such as those posed in MRPC 3.3(a)(2), the duty arises only when necessary to prevent or rectify the consequences of a fraudulent or criminal act. In the situation discussed herein, the client is plainly not engaging in any fraudulent or criminal acts in refraining from alerting the prosecutor's office of this apparent oversight. Thus, neither MRPC 1.2(c) nor 3.3(a) would impose a duty to act on the lawyer under these circumstances.

MRPC 8.4(c) states:

    "It is professional misconduct for a lawyer to:

      "(c) engage in conduct that is prejudicial to the administration of justice."

Opinions regarding conduct prejudicial to the administration of justice under this Rule have related to acts such as affirmative misrepresentations to the tribunal, RI-55; failure to disclose the false nature of tendered evidence, RI-56; or entering into an agreement to withhold information regarding a lawyer's ethical misconduct, RI-88. Even assuming arguendo that silence is "conduct" within the meaning of this Rule, nothing in the commentary to MRPC 8.4 or in any of the stated opinions issued would seem to indicate that mere silence under the facts presented here would amount to conduct prejudicial to the administration of justice.

Thus the lawyer's failure to alert the prosecutor's office does not constitute ethical misconduct.