June 1991

Question Presented

What is the duty of appointed counsel to disclose the fraud of an allegedly indigent client?


1. An attorney is appointed to represent the defendant in a criminal case after the defendant has signed a sworn statement under oath that he is indigent and has insufficient funds to hire an attorney. In talking with the defendant, the attorney discovers the defendant is not in fact indigent and could pay for retained counsel. The attorney also learns the defendant was not indigent when he signed the request for appointed counsel. May the attorney inform the court of this circumstance?

2. Same basic fact situation as above, except that the defendant is unemployed at the time counsel is appointed for him, and subsequently during the pendency of the criminal case obtains employment which would enable him to employ retained counsel. May the attorney inform the court of this situation?


In both cases the answer is clear. Section 3.03(a)(2) of the Texas Rules of Professional Conduct requires a lawyer to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act and Section 1.05(f) requires a lawyer to reveal confidential information when required to do so by Rule 3.03(a)(2).