Summary: A lawyer who is an eyewitness to a crime committed by a former client is not precluded from revealing the identity of the client on the ground that the client's identity is a "secret" under DR 4-101.
Facts: A lawyer was an eyewitness to an assault being committed by a person whom the lawyer recognized as a former client. Although he immediately notified the police, both the former client and the victim had left the scene when the police arrived. Later, the lawyer learned that the seriously-injured victim of the assault had been found, but has reason to believe that the former client has not been apprehended.
The lawyer inquires whether he is ethically restrained from revealing the identity of the former client to the police. The lawyer notes that, were it not for his past relationship with the client, he would be unable to identify the perpetrator of the alleged crime.
Discussion: Under Disciplinary Rule DR 4-101(B), a lawyer is precluded from revealing a confidence or secret to the client's disadvantage. The term "confidence" is defined in DR 4-101(A) as "information protected by the attorney-client privilege under applicable law," and "secret" is defined as "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client."
Whether a client's name and address, therefore, is a "confidence" is a question that revolves around the scope of the attorney-client privilege under state law. See ABA Formal Opinion 377 (1975). This committee may not express opinions on the substance of the law.
However, we do call attention to the following:
The weight of authority denies the privilege for the fact of consultation or employment, including the component facts of the identity of the client, such identifying facts about him as his address and occupation ... .
McCormick's Handbook of the Law of Evidence (2d ed 1972) at 185-186. See also In re Grand Jury Subpoena of Stolar, 397 F Supp. 520 (S.D.N.Y. 1975) and ABA Informal Opinion 1188 (1971).
Therefore, we address ourselves only to the question whether the client's identity is a "secret" which may not be disclosed without the client's consent. See DR 4-101(B)(3) and DR 4-101(C)(1).
The definition of "secret," as used in the Code of Professional Responsibility, is broader than that of "confidence," and is not necessarily equated with attorney-client privilege under state law. As stated in Ethical Consideration EC 4-4, the "ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge." The obligation to preserve the secrets of a client continues after the termination of the attorney-client relationship. EC 4-6.
Although the client's identity in this case might literally fall within the definition of "secrets" in DR 4-101(A), since disclosure of the identity may lead to the arrest of the client, and in that sense "would be likely to be detrimental to the client," we believe that the Disciplinary Rules are not a bar to disclosure in this case.
In ABA Formal Opinion 155 (1936), construing the previous Canons of Professional Ethics, it was noted that a client's address, given to the lawyer while consulting him in a professional matter so that the lawyer may communicate with the client, may not generally be disclosed. However, the committee stated:
One who is actually engaged in committing a wrong can have no privileged witnesses, and public policy forbids that an attorney should assist in the commission thereof, or permit the relation of attorney and client to conceal the wrongdoing.
We believe that in the present case, the identity of the former client is not a "secret" under DR 4-101. The lawyer, therefore, is not ethically prevented from disclosing the identity of the client to the appropriate authorities on the ground that the client's identity is a "secret." Whether the attorney, or for that matter any other person, has an affirmative obligation to disclose the identity of a person seen committing a crime is a question of law on which we express no opinion. As noted in ABA Informal Opinion 1210 (1972), the Code of Professional Responsibility
necessarily deals directly with ... misconduct of [persons] directly observed in the ... administration of justice. [See DR 7-102(B).] It, of course, was not intended to strip a lawyer of the other obligations imposed upon him as a member of society.
Likewise, if subpoenaed and asked the identity of the client, the attorney may not claim refuge behind the concept of "secret" in Canon 2.
Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.