ABA ethics opinion addresses how to handle criminal offenses that clients commit against lawyers
At least once a month, Jeff Cunningham, a New York City-based malpractice defense lawyer, receives an email from someone trying to scam him by claiming to need his legal assistance. The emails generally involve wire transfers or checks and a desperate cry for help with putting funds into a trust account.
While Cunningham finds the grifters easy to spot, some lawyers are getting caught in their traps and swindled, he says.
“Somebody must be falling for it,” says Cunningham, who also advises law firms on risk management and ethics. “Otherwise, they wouldn’t keep going.”
What happens to the lawyers who get taken in by scams and subsequently defrauded? Are they permitted to disclose the details of the crimes against them to law enforcement, or do they have to stay silent because of their duty of confidentiality toward clients or prospective clients?
If a lawyer is a victim of a crime from a potential or current client, they can tell law enforcement or other reporting agencies, according to a March ethics opinion from the ABA Standing Committee on Ethics and Professional Responsibility. The opinion states that lawyers who are victims of clients’ crimes are permitted to disclose what happened to them not just to law enforcement authorities, but also when receiving medical aid or for insurance coverage or other services.
The formal opinion, Cunningham says, is a “benefit to the profession” because lawyers should think over problems “before they fall in our laps.” But he and other ethics attorneys say that questions remain over when exactly the confidentiality can be broken and when it must be maintained.
Overall, ethics lawyers say the opinion makes sense, particularly when crimes against lawyers seem to be escalating, although there’s no data tracking offenses against lawyers and comparing that information with other professions.
“If your client gets upset about the legal advice you give them and starts shooting up the office, you ought to be able to report that as happening,” says Wallace B. Wason Jr., a malpractice attorney in Alexandria, Virginia. Wason adds that the opinion clarifies what most attorneys probably already assume would be permissible.
The formal opinion relates to ABA Model Rules of Professional Conduct 1.6(a) and 1.18(a) and (b). Model Rule 1.6(a) says lawyers can’t reveal client information without the client’s informed consent, and 1.18(a) and 1.18 (b) extend the duty of confidentiality to prospective clients.
Formal Opinion 515 doesn’t impose on lawyers a duty to report crimes against themselves, but it states there’s an “implicit confidentiality exception” when the lawyer is a victim of the client’s crime. In addition, the opinion applies that exception when “someone associated with the lawyer or related to the lawyer is a victim of the client’s crime, and the lawyer is a witness to that crime.”
The opinion also concluded that a person who pretends to be seeking a lawyer’s service for the sole purpose of defrauding the lawyer “is not a prospective client.”
Lauren Bartlett, director of Saint Louis University School of Law’s Human Rights at Home Litigation Clinic, studies sexual violence against lawyers. She says it’s important to tell lawyers that they don’t have to “keep silent” when they are victimized.
The formal opinion, Bartlett says, is “a big step in acknowledging that there is violence happening.” But she is concerned that the opinion doesn’t define violence or crime, which according to her could create some confusion.
Dru Stevenson teaches professional responsibility at South Texas College of Law Houston. He says the opinion leaves room for questions. It states that a lawyer has discretion to report when a client commits a crime against someone associated with or related to the lawyer. He asks: What exactly does the term “associated with” mean, and how distant can the relative be?
“What if the client commits a crime against your best friend? Does that count?” Stevenson adds.
In addition, the ABA opinion states that a lawyer can only divulge as much information as is necessary to disclose the crime. But, Wason asks, where exactly is the line is between what lawyers can disclose in informing the authorities and what they still need to keep to themselves?
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