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FLORIDA NEWS ARCHIVE - LAWYER ETHICS, Candor Toward the Tribunal

Florida Bar Board of Governors adopts advisory opinion allowing lawyers to represent criminal defendant who is proceeding under false name  [Added 6/3/09]

    At its May 2009 meeting the Florida Bar Board of Governors adopted a revised version of Florida Ethics Opinion 90-6 (Reconsideration).  The headnote accompanying the opinion describes its conclusions as follows:

• A lawyer who learns that a criminal defendant is proceeding under a false name before the lawyer agrees to represent the criminal defendant who cannot persuade the client to correct the name must decline representation.  A lawyer who learns that a criminal defendant who is an existing client is proceeding under a false name must withdraw from representation and must admonish the client not to commit perjury, but cannot disclose the client’s use of the false name to the court unless the client makes an affirmative misrepresentation to the court regarding the name.

    The opinion addresses the lawyer's obligation if the court will not permit withdrawal:  "If the lawyer learns of the false name after representation has begun, the lawyer should inform the client that the lawyer cannot assist the client in misleading the court regarding the client's identity, and the lawyer should attempt to persuade the client to disclose that the client is proceeding under a false name.  . . .  If the client refuses to disclose the information and insists that the client will maintain the false name throughout the case, the lawyer must move to withdraw from the client's representation.  . . .  The lawyer must counsel the client not to commit perjury.  . . .  If the court declines to permit withdrawal, the lawyer must continue the representation.  . . .  The lawyer may not inform the court of the false name except when the client affirmatively lies to the court concerning his or her true name."  [Emphasis added; citations omitted.]

    Florida Ethics Opinion 90-6 (Reconsideration) as adopted by the Board differed from the version previously approved by the Florida Bar Professional Ethics Committee, which would have interpreted Rule 4-3.3, Florida Rules of Professional Conduct, to require the lawyer to disclose that the client was proceeding under a false name.  The opinion adopted by the Board does not explain why continuing to knowingly represent a client who is proceeding under a false name would not be considered a fraud on the court under Rule 4-3.3.

"High-low" agreement not prohibited as matter of public policy and should not have been disclosed to jury.  [Added 3/15/07]  --  Gulf Industries, Inc. v. Nair, 953 So.2d 590 (Fla. 4th DCA 2007).

Lawyer sanctioned for failing to inform appellate court that matter on appeal had been settled.  [Added 2/28/05]  --  Merkle v. Guardianship of Jacoby, 912 So.2d 593 (Fla. 2d DCA 2005).

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