I had a case where the court system did not pick up on the fact that my client had a prior DUI several years ago but within the 10-year window as set forth in the statute. No one ever asked me if my client had a prior record. The client did not have to fill anything out. Based on the record provided by the probation department, the court indicated this was a first offense and sentenced accordingly. Did I do anything unethical?
No. This is always one of those difficult areas. A lawyer learns about a client’s prior record from talking to the client. That is within the attorney-client privilege under Rule 1.6 of the Rules of Professional Conduct. That rule indicates anything pertaining to the representation you learn from the client is privileged. The fact that it is public record someplace else does not change that.
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