The American Bar Association's Standing Committee on Ethics and Professional Responsibility recently issued Formal Opinion 515, outlining the ethical obligations when “A Lawyer’s Discretion to Report When a Client Commits a Crime Against the Lawyer or Against Someone Associated with, or Related to, the Lawyer.” While not something that happens often, when it occurs, it raises significant ethical issues. In particular, the opinion addresses the circumstances under which a lawyer may disclose information and explores the duty of confidentiality under ABA Model Rule of Professional Conduct 1.6 and the implicit exceptions to this rule in such situations.
The context of the Opinion addresses the fact that lawyers, like other individuals, may become victims of crimes committed by clients or prospective clients. These crimes can range from financial fraud to violent acts. Lawyers may have a personal or societal interest in reporting these crimes to law enforcement authorities to enable investigation and prosecution. In addition, lawyers may need to disclose information to receive medical treatment, insurance coverage, or other services, or to prevent harm to others. However, the information required for such disclosures may be protected under the duty of confidentiality established by Rule 1.6(a).
The opinion then provides several hypothetical scenarios to illustrate situations where a lawyer might be a victim of a client's crime. In the first hypothetical, a lawyer is defrauded by a person posing as a foreign creditor, who sends a fraudulent check that the lawyer deposits and disburses funds from, only to later discover the check was fake.
In the second hypothetical, a lawyer identifies a scam before accepting representation, in which both the alleged creditor and debtor are sham parties intending to defraud the lawyer.
The third hypothetical is when a client becomes violent during a meeting, shooting the lawyer or the lawyer’s paralegal.
Finally, the fourth hypothetical involves a client stealing the lawyer’s wallet during an office visit.
In each instance, Rule 1.6(a) would prohibit lawyers from revealing information related to the representation of a client unless the client gives informed consent. This duty extends to prospective clients under Rule 1.18(b).
The opinion then notes that in some situations, the information a lawyer seeks to report about a crime committed against them may not be subject to the confidentiality duty if there is no bona fide client-lawyer relationship. For example, if a person never intended to seek actual legal services but only aimed to defraud the lawyer, there is no duty of confidentiality.
Rule 1.6(b) provides specific exceptions, however, to the confidentiality duty, and allows lawyers to disclose information to the extent reasonably necessary for purposes such as:
-
Preventing Financial Injury: Rule 1.6(b)(3) allows disclosures to prevent, mitigate, or rectify substantial injury to the financial interests or property of another resulting from the client’s crime or fraud.
The opinion concludes that there is an implicit exception to the confidentiality rule when a lawyer is a victim of a client’s crime or witnesses a crime against someone associated with or related to the lawyer. This exception allows the lawyer to disclose information to the extent reasonably necessary to report the crime to law enforcement authorities or to seek other services, remedy, or redress. The implicit exception is based on the principle that the Rules of Professional Conduct are rules of reason and should be interpreted with reference to the purposes of legal representation and the law itself.
Although there is an implicit exception, the disclosure still must be limited to what is reasonably necessary for the investigation and prosecution of the crime or for securing necessary services.
Thus, in the first hypothetical, it may be necessary to disclose details of the representation to explain the financial fraud. In hypotheticals three and four, it may be necessary only to disclose the client’s identity and the nature of the crime.
The opinion notes that the implicit exception also applies when the lawyer witnesses a crime against someone associated with or related to the lawyer, such as a staff member or family member. The disclosure must be reasonably necessary and limited to what is required for investigation and prosecution.
Further, the implicit exception is permissive. This means that lawyers are not obligated to report clients’ crimes but may do so under the specified conditions.
The opinion anticipates that a client-lawyer relationship is unlikely to continue after the lawyer reports the client’s crime. The lawyer will typically have an obligation under Rule 1.4 to inform the client of the disclosure. If the client discharges the lawyer, the lawyer must withdraw from the representation under Rule 1.16(a)(3). Additionally, the lawyer may need to withdraw if the crime and disclosure create a conflict of interest that materially impairs the lawyer’s ability to represent the client competently.
ABA Formal Opinion 515 addresses the ethical considerations for lawyers when they are victims of crimes committed by their clients or prospective clients. It establishes that there is an implicit exception to the duty of confidentiality under Rule 1.6(a) in such situations, allowing lawyers to disclose information to the extent reasonably necessary for investigation, prosecution, or other necessary services. This exception ensures that lawyers are not unduly burdened by confidentiality obligations when they are victims of crimes, while still maintaining the integrity of the client-lawyer relationship and the purposes of the confidentiality rule.
Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel and Chair of the Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility, regularly represents injured workers in claims before all Pennsylvania courts. He also provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of Fee Agreements in Pennsylvania (6th Edition) and author of Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at dan@danieljsiegel.com.
