Informal Opinion Number: 970077

Reference Note: Rule 4-3.3, Candor Toward the Tribunal, was amended effective July 1, 2007.  This opinion is based on Rule 4-3.3 in effect prior to that date.

QUESTION: Attorney represented a criminal defendant who gave the name X. Attorney negotiated a plea and fine. Attorney has now learned that the client is really Y, not X. The prosecutor’s office has also learned this information from other sources. May Attorney file a motion to vacate?
ANSWER: Attorney should contact Y as soon as possible and advise Y of the situation. Attorney should advise Y that Attorney will file a motion to vacate, if Y authorizes it. If Y will not authorize it, Attorney may not file a motion to vacate. However, if the court has not already been made aware of the situation by someone else, Attorney has an obligation under Rules 4-3.3(a)(4) and 4-3.3(b) to do so before the proceeding becomes final. If that is the situation, Attorney must advise Y that Attorney will take this action at the time Attorney is consulting with Y about filing a motion to vacate. If Y does not authorize Attorney to file the motion to vacate, Attorney should not undertake to represent either X or Y in any further proceedings related to this matter.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

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