Summary: A lawyer is not required by the confidentiality obligation to restrain his employee who believes that a client stole money from her purse at the office from revealing the client's identity to the police.
Facts: Money was stolen from the purse of an employee in a lawyer's office. The police want to know whom the employee suspects. The employee believes that two clients (or one of them) who were in the office are most likely the thieves and she wishes to reveal their names. The lawyer has inquired whether he and his employee are forbidden by the confidentiality obligation from revealing the clients' names. The employee will follow his advice.
Discussion: DR 4-101(D) requires a lawyer to exercise reasonable care to prevent employees from disclosing the confidences and secrets of a client. In Opinion 76-11 we advised that although the identity of a former client "might literally fall within the definition of 'secrets' in DR 4-101(A)," it should not be construed to do so in the situation of a lawyer who saw a former client committing criminal assault on a third party. We quoted the language of ABA Opinion 155 (1936) to the effect that "[o]ne who is actually engaged in committing a wrong can have no privileged witnesses." Opinion 155 required disclosure of the whereabouts of a client who fled while on bail. That opinion has now been withdrawn by the ABA Committee on Ethics and Professional Responsibility, presumably because the information about the client's whereabouts had been obtained in the professional relationship and the crime, while continuing, was regarded as involving essentially past action. See Formal Opinion 84-349.
Whether the conclusion of Opinion 84-349 is accurate or not in the circumstances of that inquiry, the present inquiry, and the inquiry in Opinion 76-11, are different. They both concern information that was acquired by the employee as a witness and not in the professional relationship. The fact that the client was in the office to receive professional advice does not mean that everything the client does there falls within the protection of DR 4-101. The confidentiality obligation does not make for open season on a lawyer at the hands of a client. The employee's observation of the client was not information revealed by the client for the purpose of obtaining legal advice or gained in the course of the professional relationship. The employee's observation relates to the commission of a crime against her and it makes no difference whether the employee observed it in the office or some place else. The fact that the employee knows the identity of the client only because the client came to the office does not prevent the revelation. The identity is not being revealed in connection with the professional relationship. Likewise, the fact that the employee may not be sure that a client was the thief does not affect our view of the confidentiality issue. It only goes to the strength of the employee's statement to the police.
Permission to publish granted by the Board of Delegates on March 23, 1993. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.