Ethics Opinion

Opinion No. 77-17

December 1977

Summary: An attorney asked to defend a regular client against criminal charges based upon past misconduct may not properly reveal confidential information received from the client with regard to his past misconduct, without the consent of the client. But the attorney may properly reveal the client's intention to commit a crime in the future, and he must do so if it involves a fraud perpetrated upon a person or tribunal in the course of the representation, or involves a continuing fraud or other illegal conduct to be consummated through the cooperation of the attorney.

Facts: Y has been a client of Attorney X for a number of years, and during that time X has handled many separate matters for Y. As a result of their relationship, X knows that Y is of little means. Recently, Y brought $20,000 in cash to X and asked X to transmit the cash to Z, a person who had supposedly sold some property to Y. Two weeks later, Y brought X an additional $60,000 in cash and instructed X to place the funds in X's clients' account and to use the same in payment of certain items that Y had purchased. Additionally, Y instructed X to deduct any legal fees from the fund. After using some of the money, X inquired as to the source of the money. Y told X that he had been involved in certain criminal activity and that the money represented Y's profit. Y also advised X that an arrest was imminent and asked X to defend him. Attorney X now asks whether he must disclose Y's criminal activity to the proper authorities and asks further what he should do with the money remaining in his hands.
Discussion: We assume for purposes of this inquiry that an attorney/client relationship exists between X and Y in connection with Y's defense on the criminal charges. See MBA Opinion 77-12. We assume further that Y is no longer engaged in any criminal activity. With those assumptions in mind, we are of the opinion that the information communicated to the attorney about the client's past criminal activity is privileged and therefore not subject to disclosure by the attorney without the consent of the client.
Disciplinary Rule DR 4-101(B) states, in part, that "[e]xcept when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client ... ." Whether a particular communication is a "confidence" under DR 4-101(A) is a question of state law not within the purview of this committee. However, a "secret" as defined in DR 4-101(A) is "other information gained in the professional relationship ... the disclosure of which would be embarrassing or would be likely to be detrimental to the client." Certainly, the client's admission in this case of his past involvement in criminal activity is a "secret" within the above definition. Accordingly, it is protected from disclosure, except insofar as one of the exceptions contained in DR 4-101(C) is applicable.
Disciplinary Rule 4-101(C)(3) states that "A lawyer may reveal ... the intention of his client to commit a crime and the information necessary to prevent the crime." ABA Formal Opinion 155 states "When the communication by the client to his attorney is in respect to the future commission of an unlawful act or is to a continuing wrong, the communication is not privileged." The critical distinction is between a past crime and a continuing or future crime. In this case, it appears that the crime has been completed, in which case the attorney may not disclose the information. It should be noted, however, that if the client intends future criminal activity, the lawyer may disclose that fact to the proper authorities. See ABA Formal Opinion 1349. Indeed, he would be required to do so, if the intended future criminal activity involved a fraud perpetrated upon a person or tribunal "in the course of the representation" under DR 7-102(B)(1), or if it involved a continuing fraud or other illegal conduct "to be consummated through the cooperation of the lawyer." See MBA Opinion 76-17, and DR 7-102(A)(7).
We are not able to answer the second inquiry, what X should do with the client's funds remaining in his hands. This involves a question of substantive law--who has title (legal and/or equitable) to the funds--and a question of procedure--whether the funds constitute evidence of a crime. We would refer the inquirer to In re Ryder, 263 F. Supp. 360, affd., 381 F. 2d 713 (1967), in which an attorney was disciplined where he knowingly concealed evidence (the sawed-off shotgun with which his client had committed a crime) by removing it from his client's safe deposit box and putting it in his (the attorney's) own safe deposit box.

Permission to publish granted by the Board of Delegates, 1977. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.