Advisory Opinion: 1250

Year Issued: 1988

RPC(s): RPC 3.3(f); 3.5(b)

Subject: Criminal defense; ex parte communication with judge.

RPC 3.3 (f) requires an attorney to inform a tribunal of all relevant facts known to the attorney when in an ex parte proceeding. The purpose of such disclosure is to permit the tribunal to make an informed decision. The disclosure of relevant facts is required whether adverse to a client.
In RPC Inquiry #1250, we assume that the defense attorney did not inform the tribunal of the Prosecuting Attorney's sentencing recommendation. The defense attorney did not inform the Prosecutor he/she would have his client enter a guilty plea and receive sentence. The Prosecutor's recommendation is a relevant fact requiring disclosure so that the tribunal can make an informed decision on sentencing. Thus, under these facts as assumed here, RPC 3.3(f) would not sanction the non-disclosure to the tribunal.
Apparently, we can assume that there is a standard procedure known to the local bar relating to Pre-trial Agreements. The defense attorney is assumed to have told the Prosecutor that he/she would get back as to executing the Agreement. This created a situation in which the Prosecutor could reasonably expect the defense attorney to respond to the Agreement before having his client appear before a judge to be sentenced. As such, the defense attorney's conduct in not getting back to the Prosecutor before taking his client to court is dishonest and may be deceitful and misrepresentative as those terms are commonly used. Accordingly, such conduct would violate RPC 8.4 (c).
Assuming that a tribunal is being fully informed in ex parte proceedings [see RPC 3.3(f)] serves the purpose of judicial administration, the defense attorney's conduct may violate RPC 8.4 (d).
We note also that the RPC preamble states that "A consequence obligation of lawyers is to maintain the highest standards of ethical conduct." This urges the highest, not the minimally acceptable, level of conduct. A lawyer who gives his word should abide by it.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.