3. Advocate

(a) When a lawyer knows of credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the lawyer shall promptly disclose that evidence to the court in which the defendant was convicted and to the corresponding prosecutorial authority, and to defendant's counsel or, if defendant is not represented, the defendant and the indigent defense appointing authority in the jurisdiction.

(b) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or other law.

(c) A lawyer who in good faith concludes that information is not subject to this Rule does not violate this Rule even if that conclusion is later determined to have been erroneous.

(d) This Rule does not require disclosure if the lawyer knows that appropriate governmental authorities or the convicted defendant already possess the information.


Rectifying the conviction and preventing the incarceration of an innocent person are core values of the judicial system and matters of vital concern to the legal profession. Because of the importance of these principles, this Rule applies to all members of the Bar except prosecutors, whose special duties with respect to disclosure of new, credible, and material exculpatory evidence after conviction are set forth in ER 3.8 (g), (h), and (i).