Lawyers who are victims of clients' crimes can't be expected to stay silent, new ABA ethics opinion says
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It’s a common scam—someone poses as a potential client online, with the nefarious goal of getting a lawyer to cash and refund a fraudulent check. Reporting the person to law enforcement does not violate an attorney’s duty of confidentiality because there’s an implicit exception when the lawyer is the victim of a client or a potential client’s crime, according to an ethics opinion published Wednesday by the ABA’s Standing Committee on Ethics and Professional Responsibility.
The exception also applies to acts of violence and theft, according to Formal Opinion 515. A March 5 ABA press release is here.
“Occasionally, lawyers may metaphorically take a bullet for the client, but they cannot reasonably be expected to take a bullet from the client and to keep quiet about it,” according to the ethics opinion.
Published Wednesday, the opinion centers on Model Rule 1.6(a) of the ABA Model Rules of Professional Conduct, which holds that lawyers can’t reveal client information without the client’s informed consent, and Model Rule 1.18(a), which extends this general duty of confidentiality to prospective clients.
The “threshold question” for a lawyer victimized by client criminal conduct is whether information that the lawyer seeks to report to law enforcement officials is subject to the confidentiality duties found in the Model Rules of Professional Conduct, according to the opinion.
It lists two considerations. First, the information may not relate to the representation of a client or a prospective client. In the check scam hypothetical, if the lawyer recognizes that it is a scam before sending the scammer money, the opinion notes, “there is no bona fide client-lawyer relationship, and therefore, the lawyer has no confidentiality duty.”
Second, even if there is a bona fide client-lawyer relationship, some information that the victimized lawyer may wish to reveal is not information related to the representation of the client. However, the opinion cautions that “it will be a rare occasion when the information about a client’s acts does not relate to the representation.”
Other hypotheticals discussed involve a client who becomes angry with the lawyer and shoots them and a client stealing a lawyer’s wallet.
Generally, according to the opinion, there is an implicit exception to the confidentiality rule.
“It is unreasonable to require lawyers to remain silent when their clients abuse the relationship by committing a crime against the lawyer,” according to the opinion.
The crimes could also involve a lawyer’s family or staff, the opinion notes, and in such situations, the client-lawyer relationship “almost certainly” will end.
“Indeed, it is hard to imagine a scenario in which a lawyer who is actively seeking the prosecution of a client would not be materially impaired in the ability to competently represent the client. Even if withdrawal is not mandatory, the lawyer may elect to withdraw if, as is not unlikely, the client’s criminal conduct has made it unreasonably difficult to continue the representation,” according to the opinion.
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