The Lawletter Vol 35, No 1, January 3, 2011
Suzanne Bailey—Senior Attorney, Criminal Law
In an advisory opinion that is not binding on any court or tribunal, the Legal Ethics Committee of the Virginia State Bar recently issued a Legal Ethics Opinion ("LEO") cautioning both prosecutors and defense counsel as to the likely impropriety of making concealment of the identity of a material witness a condition of a plea offer. In LEO 1854 ("Settlement Negotiations in a Criminal Case") (Oct. 5, 2010), available at http://www.vacle.org/opinions/1854.htm, the bar was presented with a hypothetical plea negotiation situation in which the prosecutor communicates a settlement offer to the defense counsel, advising the defense counsel of material witnesses in the case, including the name and involvement of Witness X, whom the prosecutor wishes to "protect." A condition of the proffered plea agreement requires that the defendant's attorney reveal to the client neither the identity of Witness X nor the scope of Witness X's involvement in the case. The prosecutor makes it clear to the defense counsel that if the defendant is made aware of Witness X's identity and involvement, then the plea offer will be withdrawn. The state bar was then asked to consider (1) whether the prosecutor could make concealment of the identity and involvement of the witness a condition of the settlement offer, and (2) whether defense counsel could withhold relevant information concerning the witness from the client if withholding such information would result in a favorable plea for the client.
Resolution of the questions presented depended upon construction of Virginia Rule of Professional Conduct ("RPC") 1.4(c), concerning communication, and RPC 3.4(h), concerning fairness to the opposing party and counsel. Consistent with Rule 3.4(h), which prohibits a lawyer from requesting that a person refrain from giving relevant information to another party, it would be unethical for the prosecutor to give the defense attorney detailed information concerning the identity and involvement of Witness X and then ask the defense counsel not to share that information with the client, since the identity and involvement of the witness are relevant information. On the other hand, because the prosecutor is not obligated to make a plea offer or to provide all inculpatory evidence or witness testimony to the defense, the prosecutor could make a plea offer based on an unnamed confidential informant, allowing the defense attorney and the client to assess the offer based on the limited information made available to them.
In the event that the prosecutor were to violate Rule 3.4(h) and make an offer contingent on the defense counsel's concealment of the identity and involvement of Witness X, the defendant's attorney would be guided by Rule 1.4(c), which requires the attorney to inform the client of all pertinent facts that will affect the determination of the plea. Whether the identity and involvement of Witness X is information that must be disclosed must be decided on a case-by-case basis. It would be possible for the defense counsel to withhold this information from the client if counsel believed that the defendant had enough information about pertinent facts to make an informed decision. However, it would be unethical to withhold "salient facts or information that would be pertinent to the defendant's decision to accept a settlement or plea agreement in his or her matter." LEO 1854.