Ethics Opinion

Opinion No. 81-4

April 1981

Summary: An attorney may not properly obtain information which is a matter of public knowledge and convey it to a client under suspicious circumstances if he believes that he may be assisting the client in conduct that the lawyer knows to be illegal, even though the client might be able to obtain the information directly, unless the attorney first satisfies himself that the purpose of obtaining the information is not illegal.

Facts: An attorney relates that he has been asked by a client to obtain a transcript of a criminal trial in England that has reached the appellate court. The client will pay a reasonable fee and any costs, including the costs of having the lawyer go to England and obtain the transcript. Upon inquiry the attorney finds out that the transcript probably contains the formula for making a controlled substance, the sale or manufacture of which is almost always punishable as a felony.
The attorney further relates that although he has had prior contact with this client, he does not know his present whereabouts. The client in the past has occasionally telephoned him for advice or services. The attorney inquires as to his obligations and responsibilities under the circumstances.

Discussion: This committee does not express opinions on matters of substantive law. Insofar as this question may involve questions of criminal law this committee, therefore, expresses no opinion.
The client has not told the attorney what he intends to do with the information and the attorney has not asked. Of course, merely obtaining knowledge of how to manufacture the controlled substance is not illegal in and of itself.
DR 7-102(A)(7) provides in relevant part: "In his representation of a client, a lawyer shall not: ... (7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent." (Emphasis added.)
It is clear from the circumstances that the attorney has not "counseled" his client to engage in conduct which he knows to be "illegal or fraudulent." Nevertheless, the totality of circumstances strongly suggests that the purpose of obtaining this information may be illegal.
The committee assumes that the transcript (or exhibits) in the English criminal trial are public documents, as is ordinarily the case in the United States, and that the client may be able himself to obtain this information through his own efforts. The committee concludes, however, that if the attorney believes that the action he is being asked to take is part of the commission of a crime, he should not involve himself in it. Having been put on notice of suspicious circumstances, the lawyer before proceeding has an obligation to satisfy himself that he is not "assisting" in illegal conduct. See EC 7-5: "[A] lawyer should never ... aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor."
We are not prepared to state what steps a lawyer must take to satisfy himself in all cases. In this case, however, the lawyer should be reluctant to accept a mere denial, without any factual amplification, that his client does not intend to engage in illegal conduct.

Permission to publish granted by the Board of Delegates on April 14, 1981.
As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.