A Tricky Situation

Article 2, Section 22 of the Arizona Constitution says that “[a]ll persons charged with crime shall be bailable by sufficient sureties, except . . . [f]or felony offenses committed when the person charged is already admitted to bail on a separate felony charge and where the proof is evident or the presumption great as to the present charge.”

Knowing that, what do you say when you know your client’s new offense was allegedly committed while he was out on bond for another felony offense and the judge asks, “counsel, do you have any recommendations regarding bond?” Does it matter if the same judge is assigned to the client’s other case and presumably knows that the client was out on bail when he or she supposedly committed the new offense? Does it matter if the prosecutor doing coverage, who recommends a bond amount, is the assigned prosecutor on the client’s other case and presumably knows the client was out on bail when he or she supposedly committed the new offense?

In a situation like that, everyone but you is operating under some kind of false assumption. It’s not uncommon. In fact, I encountered a few situations like that last week (hence the post). They either don’t remember your client was on release, or they don’t know about Article 2, Section 22. Regardless, you know they’re wrong. You’ve probably told your client he isn’t entitled to bond, and when the judge asked you for a bond amount, the client was probably grinning from ear to ear thinking it was his lucky day.

In a situation like that, the State Bar of Arizona would probably direct you to Ethics Rule 3.3, Candor Toward the Tribunal. Here it is:

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) 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

(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

Sure, it’s an important rule, but does it really apply? The constitution is legal authority, but is it directly adverse to the position of your client? Your client wants bond, obviously, but his position was that he couldn’t get it. The judge and the state are the ones who hold the position which is contrary to legal authority. Also, is arguing for bond a false statement of fact or law? Doesn’t the rule seem to only require you correct a false statement of material fact or law that you previously made to the tribunal?

Some of these questions are answered to some degree by ethics opinions, but I don’t think the answer is clear. How big of a factor is the way the judge words the question? Does merely asking for recommendations regarding bond give rise to a duty to tell the court your client isn’t entitled to it? What if the judge assumes the client gets bond and just asks you for an amount and a reason? What if he just asks you for an amount? Just a reason? Do you argue for the bond amount you know your client wants, or do you just throw out a number and say as little as possible? Is the way you word it going to make a difference? What if you say, “if the court is inclined to set a bond amount, X amount is appropriate for Y reasons?” Can you argue freely if you assume the court and prosecutor think proof is not evident or the presumption not great as to the present charge?

You can probably guess by now that I’m just going to ask questions here without really answering any of them. Every situation is different, so I don’t think there’s any single right answer. However, I think it’s fair to say any good criminal defense lawyer is going to keep his or her client’s interests in mind at all times while advocating for the clients within the boundaries of the ethical rules (duh). In the right situation, there are ways to argue for what your client wants.

One fascinating thing to me about what I’ve described is that I don’t recall law school professionalism ever covering a fact pattern where everyone was wrong but you. Maybe they thought learned judges and prosecutors didn’t make mistakes like that. If so, they’re wrong. Situations like the one I’ve described happen regularly. More often than most people think.

Because of that, it’s probably not a bad idea to figure out in advance how you’d react.