The American Bar Association’s Standing Committee on Ethics and Professional Responsibility published Formal Opinion 515 on March 5. The opinion covers a lawyer’s discretion to report when a client commits a crime against them or someone associated with them.
The committee noted that lawyers or people they work with may occasionally become victims of a client’s crime.
“Like other people, lawyers may have a personal interest or perceive a societal interest in reporting a crime committed against them to enable law enforcement authorities to investigate or prosecute as appropriate,” the committee wrote. “Lawyers may also have other interests in disclosing information relating to the crime, such as in receiving medical treatment, insurance coverage or other services, or to prevent harm to others.”
But the committee cautioned that the information the lawyer would need to report may include information related to the representation of the client that the lawyer ordinarily must protect under ABA Model Rule of Professional Conduct 1.6(a).
Although Rule 1.6(b) lists exceptions for when a client abuses the client-lawyer relationship, no exception would apply to all situations in which a lawyer, or someone associated or related to them, is a victim of a client’s crime.
The opinion concluded that there is an implicit confidentiality exception in this specific situation.
The committee noted that when the lawyer is a victim of the client’s crime or someone associated or related to them is a victim of the client’s crime and the lawyer is a witness to that crime, that the lawyer can report the crime to law enforcement.
To illustrate some scenarios where attorneys could be exempt from Rule 1.6(b), the ethics committee posed four hypothetical situations.
One of which was if, during an in-person meeting with a client, a lawyer briefly leaves the client in the lawyer’s office unattended and after the client leaves, the lawyer discovers that the client has stolen the lawyer’s wallet from their desk.
Another scenario posed by the committee was if a person purporting to be a foreign creditor seeks by email to retain a lawyer in a collections matter on a contingent-fee basis and, before agreeing to accept the representation, the lawyer determines that both the alleged creditor and the alleged debtor are sham parties seeking to scam lawyers.
Rule 1.18(a), 1.18(b) and 1.9 dictate the constraints for attorneys when it comes to what may qualify for the establishment of a duty of confidentiality for former, current or prospective clients.
The committee noted that Rule 1.6 lists seven exceptions to the confidentiality duty, explaining that the exceptions have expanded over time.
“As of 1980, the ABA Model Code of Professional Responsibility permitted disclosures without the client’s consent insofar as necessary to serve only three purposes: to prevent a client’s crime; to collect a lawyer’s fee or to defend the lawyer or the lawyer’s employees or associates against an accusation of wrongful conduct; or to comply with another rule, a law or a court order,” the ethics committee wrote in Opinion 515.
The exceptions permit disclosures if the attorney reasonably believes it’s necessary “to prevent reasonably certain death or substantial bodily harm,” if it’s conceivable that a client who committed a violent crime against the lawyer or a member of the lawyer’s family or someone associated with the lawyer may be threatening further violence or if the attorney reasonably believes that a disclosure is necessary to prevent further violent acts that are “reasonably certain [to result in] death or substantial bodily harm.”
The committee noted other exceptions include if the lawyer reasonably believes a disclosure is needed to prevent, mitigate or rectify substantial injury related to a crime of fraud or a financial crime. It explained this may cover some scenarios in which the lawyer is a victim of the client’s financial crime.
But it cautioned this exception would not apply in the scenarios it posed earlier in the opinion, either because the relevant crime is not a financial crime, the lawyer’s services were not used to commit the crime, third parties were not victimized or disclosure would not prevent, mitigate or rectify financial harm to third parties.
Rule 1.6(b)(5) allows a lawyer to make disclosures if they reasonably believe it’s necessary to establish a claim or defense on their behalf in a controversy between the lawyer and the client, according to the opinion.
“To the extent that the lawyer initiates a civil claim against the client — or, presumably, now-former client — to seek redress for harm caused by the client’s crime, such as the return of stolen property, the lawyer may make reasonably necessary disclosures under this exception,” the committee wrote. “But the exception would not justify initially reporting to law enforcement authorities, since a criminal investigation or prosecution is not a controversy between the lawyer and the client.”
The committee explained that, in considering the situation in which a lawyer is the victim of a client’s crime, it found interpretive guidance in the scope section of the model rules. That section stated the Rules of Professional Conduct are rules of reason and should be interpreted with reference to the purposes of legal representation and of the law itself.
“Lawyers might readily assume that, if a client commits a crime against them or their employees or associates, they can report the crime to law enforcement authorities and appropriate others, notwithstanding the confidentiality duty under Rule 1.6(a),” the ethics committee wrote. “The Committee concludes that they would be correct, even though, in many situations, no express exception to the confidentiality duty will apply. That is because, in this situation, the Committee believes an implicit exception applies.”