Ethics Opinion

Opinion No. 90-2

February 1990

Summary: A lawyer discovers that a client, whom he represented a few years ago in a case involving criminal assault upon several young children in the client's care, has obtained a similar job caring for disturbed young children. If the lawyer believes, based on all the information in his possession, including information gained in the prior representation, that the client's proclivities rise to the level of "intention" to commit a crime against the children currently committed to his care, he may reveal that intention to the appropriate persons as well as information sufficient to prevent the crime, if he is unable to persuade the former client to make the appropriate disclosure.

Facts: A few years ago, Lawyer represented a camp counselor accused of indecent assault on several young children under his supervision. The client quit his job, pleaded guilty to charges of simple assault and battery, and was sentenced to probation. He completed his sentence and got a job as a shipping clerk.
Lawyer is also on the board of trustees of an organization that runs a camp for abused children, many of whom are placed there by the state, sometimes for extended periods of time. While attending a board meeting at the camp, Lawyer met his former client, who had obtained a job there and who expressed his happiness at being back in the camp counselor business again.
Lawyer inquired of the committee about how he might reconcile his obligations to his former client and to the camp, specifically whether there were any circumstances under which he could reveal his former client's criminal record to the camp. He did not know whether his former client had told the camp about his difficulties or indeed whether the camp had asked him any questions that should have elicited that information.
Discussion: DR 4-101(B) provides that except when permitted under DR 4-101(C), a lawyer "shall not knowingly: (1) Reveal a confidence or secret of his client" or "(2) Use a confidence or secret of his client to the disadvantage of the client." It is quite clear that the obligation to maintain the confidences and secrets of a client applies equally to the confidences and secrets of a former client, and we have previously so advised. See Opinion 75-7. If that is the case, then for the same reasons, the exceptions to that obligation, which are contained in DR 4-101(C), also apply to a former client. DR 4-101(C) provides:
A lawyer may reveal:
(1) Confidences or secrets with the consent of the client or clients affected, but only after a full disclosure to them.
(2) Confidences or secrets when permitted under Disciplinary Rules or required by law or court order.
(3) The intention of his client to commit a crime and the information necessary to prevent the crime ... .
The first question is whether the information that Lawyer possesses all falls under the category of confidences and secrets. Obviously, what the former client told him in the course of representation is in that category. But what of the public plea and arrest record? In Opinion 84-3, we declined to interpret the confidentiality rule as if it contained the exception contained in Model Rule 1.9 of the proposed Model Rules of Professional Conduct. That rule permits confidential information to be used to the detriment of a former client "when the information has become generally known." We relied on the Ethical Considerations to the Model Code of Professional Responsibility (on which our Disciplinary Rules are based), on several cases, and on general policy considerations to reach the conclusion that the broad wording of our rules justified client expectation that confidential information would not be used by a former attorney to embarrass him. Thus, a lawyer could not use his confidential information about an agency's proposed discharge of a former client for misconduct in connection with his defense of other employees against misconduct charges by the same agency.
We cautioned, however, that we were not giving advice with respect to all possible situations where a former client's information might be revealed and we were not advising that all "notorious" information revealed to a lawyer was always a confidence or secret. We limited our advice to a factual situation "where confidential information about 'misconduct' and punishment of a former 'client' is centrally related to a proposed representation.''
The policy considerations in the present case are quite different. The third party interest in the earlier inquiry was the interest of plaintiffs in acquiring evidence to support their case. The third party interest here is the threat to disturbed children under the former client's present care. On the other hand, the threatened harm to the client in the earlier case was embarrassment, while the threatened harm here is loss of job and reputation, perhaps most unjustly if the client has really been able to "cure" the problem that led to the earlier incidents. In addition, like the earlier inquiry, the confidential information about the former client's misconduct and punishment is "centrally related" to the current dilemma in which the lawyer finds himself.
We therefore conclude that while the arrest and plea record are matters of "public" information, they came to the lawyer's attention solely because of his representation and are far enough in the past that they are not of such current knowledge that they ought to fall within the category of information that is so well-known that it cannot constitute confidential information. The broad wording of DR 4-101 treats information of this sort in the possession of a lawyer as a "secret," and unless it falls within one of the three exceptions contained in DR 4-101(C), it may not be revealed.
The three subsections of DR 4-101(C)(3) quoted above contain three possibly relevant exceptions. One of them, however, (C)(2), is not useful in answering this inquiry. That subsection refers to exceptions contained in other disciplinary rules, which we shall address shortly, and those "required by law or court order." There are no court orders involved in this inquiry. As to requirements of "law," the committee is not permitted to give advice about matters of disputed issues of substantive law and we are not aware of any statutes or common law principles that clearly address this case. We therefore do not address the question whether there is any "law" under DR 4-101(C)(2) that may permit the revelation of confidences or secrets in the factual situation presented by this inquiry.
The relevant subsections are therefore subsections (C)(1) and (C)(3). As far as subsection (C)(1) is concerned, the fact of the former relationship between Lawyer and the camp counselor is sufficient to permit Lawyer, if he wishes, to discuss with his former client the risks and the advisability of revealing his past history to the camp, if he has not already done so. Either course of action, disclosure or nondisclosure, may cause the former client to lose his job. But it is possible that the former client will either make the disclosure himself or authorize the lawyer to do so. Although we may not give advice about matters of substantive law, we point out that any effort by the lawyer to act in his capacity as camp trustee with respect to this matter raises a difficult problem of conflict between the lawyer's fiduciary responsibility to his former client and to the camp.
The harder case will arise if the former client states that he has not told his past history to the camp, that he has put that past incident completely behind him, and that he therefore will not reveal the prior occurrences. At that point, Lawyer is in a very difficult situation, for the remaining relevant portion of the Disciplinary Rules permits revelation only of "the intention ... to commit a crime."
The first question that needs to be addressed is the degree of certainty that a lawyer must have before revelation is permissible. DR 4-101(C)(3) is silent on that issue and so we must seek the standard that best carries out the policies of DR 4-101. DR 4-101(B) and (C) state two very strong policies--the policy of confidentiality and the policy of breaching confidentiality for important public purposes. In particular, DR 4-101(C)(3) embodies the important purpose of providing for prevention of crime. The basic rules of both DR 4-101(B) and the exception contained in DR 4-101(C)(3) are stated in quite far-ranging terms. The former covers all confidences and secrets, from the most important and private to the most trivial and public. The latter provides for the possibility of preventing relatively minor crimes, even victimless crimes, as well as very serious crimes, such as child abuse.
There are two major approaches to picking the standard describing the degree of certainty that triggers the permissible use of DR 4-101(C)(3). One would set forth a spectrum of standards to match the balance of policy considerations looking toward maintaining or revealing the confidential information in particular kinds of cases. The other approach would be to describe one standard to apply to all situations and to direct lawyers to take account of the different policy considerations in deciding whether to exercise their discretion should the situation fall within the exception contained in DR 4-101(C)(3).
The argument for a spectrum of standards is that the breadth of both the basic rule and the (C)(3) exception suggests that a different standard of certainty is appropriate to different cases. One would want a lesser degree of certainty in giving a lawyer discretion to reveal confidential information when the crime threatened is very serious, the information to be revealed is not very personal or private, and the consequences of revelation to the client are not substantial. By contrast, one would want a higher degree of certainty when the crime is less serious, the confidential information is more private, and the consequences to the client of revelation are substantial.
Notwithstanding the logic of that approach, we believe that it has serious disadvantages. The most serious is that if a series of standards is stated, ranging from, say, beyond a reasonable doubt through clear and convincing to other lesser degrees of certainty, lawyers who must act in given situations will be thoroughly confused about the standard to apply. It is hard enough to decide whether one has discretion and then to decide whether to exercise it without facing the initial decision as to which of a battery of standards to apply to a situation in which facts may not be wholly clear.
We therefore believe that DR 4-101(C)(3) should be interpreted with a single standard that best carries out its purposes. The most serious policy consideration underlying DR 4-101(C)(3) is to enable lawyers to prevent serious harm to third persons, especially harm involving violence. The standard ought therefore not be set so high that that important goal will be defeated. Given the importance of the confidentiality duty in the rules, however, the standard ought not be set at too low a threshold, such as, say, the "possibility" that a client intends to commit a crime. We interpret the rule as requiring that a lawyer must conclude that the client is "reasonably likely" to intend commission of a crime before he or she obtains the discretion granted by DR 4-101(C)(3). For an ethics opinion giving similar latitude to a lawyer, see Georgia State Bar Disciplinary Board, Opinion 42, 11/16/84, summarized in 1 ABA/BNA Lawyers' Manual on Professional Conduct 570 (Dec. 26, 1984) (lawyer may disclose reasonable belief that client intends to commit suicide where client by actions and conduct has led lawyer to such belief although he has never directly stated an intention to commit suicide).
All we have advised is that the "reasonably likely" standard triggers the operation of DR 4-101(C)(3). Lawyers will still have to decide whether to exercise the discretion granted by that rule. The various circumstances referred to above--seriousness of the crime, the intimacy of the confidential information to be revealed, and the consequences to the client--as well as other relevant factors in individual cases must still be examined in order to decide whether the discretion should be exercised in any particular case.
We now turn to the task before the lawyer who has presented this inquiry. On the one hand, he is in possession of confidential information about his client, the revelation of which may cost his client his job. On the other hand, some crucial information, viz., the arrest record and conviction, although technically a "secret," is a matter of public record. Moreover, the fact of non-revelation may also cost his client his job and future bad recommendations should the information come to the employer's attention. Finally, and most importantly, the lawyer is concerned about the possibility that his client may commit a crime. The potential crime is particularly abhorrent, abuse of children, and the particular victims are susceptible of great harm and the object of great sympathy, namely, children who have been abused previously.
In deciding whether he believes the client is "reasonably likely" to have the "intention ... to commit a crime," the lawyer should consider all information in his possession. Thus, he should consider his personal knowledge of the client, the factual situation of the previous crimes, as he knows it from his past representation, and the circumstances of the counselor's present employment. Moreover, in our view, if the lawyer believes that the former client is reasonably likely to be driven by compulsion to commit a crime similar to his past criminal acts, then the former client "intends" it for purposes of DR 4-101(C)(3).
If, after considering all the circumstances, the lawyer concludes that his former client is reasonably likely to commit a crime against the children in his care, then he is free to discuss the matter with the camp or, if necessary, with any person or agency with supervisory responsibility for the affected children. The lawyer should, however, reveal the minimum amount of confidential information necessary to alert the camp or supervisory authority to the problem. It may not be necessary to reveal more information than is contained in the public record. In these circumstances, before making any disclosures on his own, the lawyer should attempt to persuade the former client to make the appropriate disclosures himself to the camp and the children's supervisory authority.
The decisions to be made under DR 4-101(C)(3) are among the most difficult that a lawyer has to make. A corollary of our interpretation therefore is that lawyers ought not to be subject to disciplinary action for any reasonable judgment that they have made in deciding whether they do or do not fall within the exception granted by DR 4-101(C)(3). We agree with the conclusion of the Wisconsin State Bar Committee on Professional Ethics in this regard. That committee considered the situation of a lawyer who entertains reasonable doubt about the criminality of a future act or the likelihood of its inflicting the required injury. It concluded that in order to "make the subtle judgments necessary in these circumstances a lawyer must be free ... to opt for either disclosure or nondisclosure." Formal Opinion E-89 summarized in 5 ABA/BNA Lawyers' Manual on Professional Conduct 236 (Aug. 2, 1989) (Wisconsin's rules permitted disclosure "to the extent that the lawyer believes reasonably necessary to prevent the client from committing a criminal or fraudulent act that the lawyer reasonably believes is likely to result ... in substantial injury to the financial interest or property of another.").
As noted previously, this committee may not give advice on matters of substantive law. We should add nevertheless, that lawyers, like psychiatrists, also face the problem of potential tort liability arising out of failure to warn known potential victims of danger at the hands of a patient or client. See Tarasoff v. Regents of Univ. of Calif., 17 Cal.3d 425, 551 P.2d 334 (1976). The other side of the coin of this most excruciating problem is that there is also the possibility of tort liability if lawyers wrongfully reveal confidential information. See 1 Mallen and Smith, Legal Malpractice 644(3d ed. 1989).

Permission to publish granted by the Board of Delegates onJune 15, 1990. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.