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CLIENT CONFIDENTIALITY AND
THE INTENTION TO COMMIT A CRIME
TOPIC: Disclosure of client confidences and secrets; scope of
the exception concerning the client's "intention to commit a crime."
DIGEST: Disclosure of client confidences or secrets is permitted
under DR 4-101(C)(3) [22 N.Y.C.R.R. § 1200.19] only where (i) conduct
necessary to satisfy all elements of the crime has not been completed
and the client has not consulted the attorney to defend the client against
criminal charges relating to that conduct and (ii) the lawyer has a
reasonable basis for believing that her client intends to commit a crime.
CODE: DR 4-101
QUESTION: When may a lawyer who believes her client may have
an intention to commit a crime disclose client confidences and secrets
in order to prevent the crime?
OPINION:
Much has been written on a lawyer's duty of confidentiality and the
discretion to disclose a client's intention to commit a crime. But little
guidance exists concerning two important issues that must be considered
before any disclosure of client confidences is made. While it is pellucid
that only a "future crime," not a completed one, can trigger
disclosure, whether a client's commission of a "continuing crime"
can itself constitute the intention to commit a future crime is uncharted
territory. In this same vein, few authorities have considered the requisite
level of certainty the lawyer must have obtained concerning his client's
intention to commit a crime before the lawyer's discretion to disclose
is triggered.
The Committee addresses these two important areas in the following factual
context. A lawyer receives a visit from a prospective client who is
accused of stealing a car and who seeks the lawyer's representation
in defending against criminal charges relating to the theft. From previous
notoriety, the lawyer is aware that the prospective client has been
linked publicly to a group associated with organized criminal activity.
During the meeting the client tells the lawyer that the car is parked
in a heated garage at the client's house, and that the client does not
intend to dispose of the car in any way. However, when the lawyer raises
the issue of a retainer, the client responds that he intends to pay
the retainer in cash, but will need a few days to raise the money. From
the conversation, it appears that the client is unemployed and has no
visible legitimate means of support. As a result of the foregoing, the
lawyer strongly suspects that the client intends to pay the retainer
from the proceeds of some other, as yet uncommitted, criminal act, possibly
the sale of the admittedly stolen car. The lawyer ponders whether she
may ethically provide the authorities with her client's whereabouts
and identity, the fact that the client has stolen a car and retains
possession of the stolen vehicle, and her concern that the client intends
to commit another crime.
The Information Concerning the Client Is a "Confidence" and/or
a "Secret"
As a threshold matter, we have no doubt that the information the lawyer
has learned about the client is protected as a "confidence"
or a "secret." DR 4-101(B) [22 N.Y.C.R.R. § 1200.19]
prohibits an attorney from revealing a confidence or secret of a client
except under narrowly limited circumstances. For these purposes, a "confidence"
is any information protected by the attorney-client privilege, and a
"secret" covers a much broader field, encompassing any 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."
DR 4-101(A) [22 N.Y.C.R.R. § 1200.19]. To constitute a secret,
it is not necessary that the lawyer learn the information directly from
the client. All that is required is that the information was gained
in the course of the professional relationship. N.Y. State 742 (2001).
Thus, a lawyer's confidentiality obligations under the Code apply to
"substantially all information gained in the professional relationship."
N.Y. City 1997-2; accord N.Y. City 1994-10; N.Y. State 528 (1981).
Here, the information that the lawyer seeks to reveal to the authorities
is confidential information communicated to the lawyer by the client
in the context of the attorney-client relationship for purposes of obtaining
the lawyer's legal advice concerning the completed theft, and is, therefore,
protected by the attorney-client privilege. As such, it is a "confidence"
under the Code. The nature of this information, which was acquired in
the professional relationship, pertaining as it does to the client's
past criminal conduct, also renders it a "secret" under the
Code, as disclosure of this information to the authorities "would
be likely to be detrimental to the client" for obvious reasons.
A lawyer may not disclose a confidence or secret of a client unless
an exception to the confidentiality rule applies. The only conceivable
exception that might apply here is DR 4-101(C)(3), which allows, but
does not require, a lawyer to reveal her client's intention to commit
a crime and any facts necessary to prevent commission of that crime.
This exception is "strictly construed . . . and is applied only
when a client is planning to commit a crime in the future or is continuing
an ongoing criminal scheme." N.Y. City 1994-10; accord N.Y. City
1994-8 (concluding that if a client's criminal fraud "dealt entirely
with past conduct, the inquirer would not be permitted to reveal it").
Does the Client's Knowing Possession of Stolen Property
Constitute the Intention to Commit a Crime?
The client's knowing possession of stolen property is a criminal violation
in New York. N.Y. Penal Code § 165.45 et seq. However, the criminal
act of knowingly possessing stolen property can only provide the basis
for voluntary disclosure of client confidences under DR 4-101(C)(3)
if its continuing nature constitutes an intention to commit a future
crime. We conclude that in the circumstances presented here, the client's
knowing possession of the stolen car cannot ethically provide the basis
for disclosure to the authorities.
Generally, a continuing crime is defined as "'one which, though
committed in the past, has ramifications or effects that continue into
the future.'" Nancy J. Moore, Limits to Attorney-Client Confidentiality:
A "Philosophically Informed" and Comparative Approach to Legal
and Medical Ethics, 36 Case Wes. Res. 177, 244 (1986) (quoting Callan
& David, Professional Responsibility and the Duty of Confidentiality:
Disclosure of Client Misconduct in an Adversary System, 29 Rutgers
L. Rev. 332, 363 (1976)). However, as Professor Wolfram observes:
By a process of what sometimes seems to be legislative
whimsey, some criminal acts that have occurred in the past are given
an indefinitely contemporaneous aspect by the criminal law. Theft, for
example, becomes possession of stolen property, or escape becomes the
offense of remaining a fugitive.
Wolfram, § 12.6.5. Indeed, a literal application of the common
definition of a continuing crime "would seem to obliterate any
distinction between past and future conduct," Moore, 36 Case Wes.
Res. at 244, allowing attorneys to disclose the criminal conduct of
their clients without any restraint.
Legal scholars considering the question of what should constitute a
"continuing crime," such that it manifests an intention to
commit a future crime have proposed several limitations to this definition
to better accomplish the aims of both the client confidentiality provisions
in the Code and of protecting innocent victims of a client's criminal
conduct. Some scholars focus on the timing of the conduct involved,
suggesting that "the mere continuation of the harmful effects of
an otherwise completed client wrong does not appear to call for ethical
analysis separate from wholly past conduct." Moore, 36 Case W.
Res. at 244.
Others have focused less on the timing of the conduct itself than on
the client's purpose in disclosing confidences and secrets to the lawyer.
Under this view:
The application of the crime or fraud exception is
not a function of when the conduct took place, or that it related to
a future crime or fraud, but rather why the conversation occurred. The
notion that the exception applies to consultations in which aid is sought
in furtherance of a "future" crime or fraud is simply a way,
albeit an unfortunate one, of making the point that a client may as
a general proposition safely admit past criminal or fraudulent acts
in order to obtain representation. In other words, a person charged
with a crime can admit guilt to the attorney in the course of defense
preparation without fear that an attorney will be able to reveal the
information. The temporal criterion means little more than this.
Harry I. Subin, The Lawyer as Superego: Disclosure of Client Confidences
to Prevent Harm, 70 Iowa L. Rev. 1091, 1117 (1985). Thus, as Professor
Wolfram writes, "where the offense is factually indistinguishable
- aside from its temporal continuation - from a past offense about which
the client has consulted a lawyer, it seems the much better result to
extend the primacy of the confidentiality principle here as much as
in the case of any past occurrence." Wolfram, § 12.6.5.
Still other scholars take the more extreme view that disclosure of any
continuing crime violates the lawyer's duty of confidentiality because
it necessarily requires the disclosure of past crimes, a prohibited
disclosure under the Code. See Abraham Abramovsky, A Case for Increased
Confidentiality, 13 Fordham Urb. L. J. 11, 18 (1985).
The Committee concludes that whether a "continuing crime"
constitutes the intention to commit a future crime hinges on the purpose
for which the client consults the lawyer and, therefore, the context
in which the lawyer learns of the client's crime. Where a client has
consulted a lawyer to defend the client against the consequences of
completed criminal conduct, even where the effects of that conduct may
be of a "continuing" character and be considered a "continuing
crime," the client's right to counsel, which is at the core of
our adversary system, is implicated.
Given that [the client] can no longer avoid these consequences
by altering [her] conduct, [the client] appears to be in need of and,
indeed, deserving of, greater protection than a client who is contemplating
future harmful conduct.
Moore, 36 Case W. Res. at 239. We conclude that an attorney may not disclose
client confidences and secrets relating to a client's completed criminal
act even though the effects may be continuing where that criminal act
is the very subject on which the client is consulting the attorney and
the client's completed conduct has satisfied all elements of the crime,
i.e. where the continuing offense is "factually indistinguishable
from a past offense" aside from temporal continuation. Wolfram §
12.6.5. In reaching this conclusion, we also recognize, however, that
it is not dictated by the language of DR 4-101(C), and that we are reaching
a balance between the competing interests of clients to confidentiality
and of society to be protected from future crimes. In this context, our
view that client confidentiality outweighs that need for the prevention
of criminal activity in the context of a completed past crime with continuing
effects must be qualified. We conclude a different balance, and outcome,
exists for emergencies which involve the prevention of imminent serious
bodily injury or death. In these situations, which the Committee anticipates
will be rarely encountered, client confidentiality must yield to the lawyer's
decision to protect human life.
The Committee concludes that the client's knowing possession of stolen
property in the circumstances presented here does not manifest an intention
to commit a crime such that it would authorize disclosure of the client's
confidences pursuant to DR 4-101(C)(3). The client sought the counsel
of the lawyer specifically with respect to the client's completed criminal
conduct. Furthermore, all the active conduct required to commit the client's
crime has been completed, as the client has already committed the car
theft and possesses the stolen vehicle. Aside from the owner's deprivation
of the use of the car for another day, there is no additional harm arising
from the client's crime, and no new victim. Although the client's continued
knowing possession of stolen property violates criminal laws, at least
for purposes of client confidentiality under the Code, we cannot conclude
that this fact constitutes the intention to commit a future crime that
would make disclosure of the client's confidences and secrets ethically
permissible.
Does the Lawyer Possess the Requisite Knowledge that
the Client Intends to Commit a Future Crime?
We turn to the issue of whether the lawyer may disclose the client's suspected
intention to commit a future separate crime in order to pay the lawyer's
retainer. Some authorities have concluded that because DR 4-101(C)(3)
does not specify the level of knowledge required by the attorney with
respect to the client's intention to commit a crime, disclosure is permitted
whenever the attorney subjectively believes that the client has such an
intention, regardless of whether the lawyer's belief is reasonable. See,
e.g., Simon at 317 ("If the lawyer believes, from all the information
available, that the client intends to commit a crime, then the lawyer
has discretion to disclose."); see also Mass. 79-1 (stating that
DR 4-101(C)(3) "does not state how certain the lawyer must be of
the client's intention before breaking the confidence") (cited in
N.Y. State 562 (1984)).
We conclude that the Code requires that a lawyer must have a reasonable
belief that her client intends to commit a crime before disclosure of
that intention and facts necessary to prevent the crime is permitted.
The mere fact that the Code does not prescribe a level of certainty required
on the part of the lawyer before disclosing a client's alleged intention
to commit a crime does not mean that a lawyer has unfettered discretion
to make disclosure wherever the lawyer suspects that the client may commit
a crime, no matter how unreasonable that suspicion. See N.Y. County 712
(1996) ("a lawyer may not make disclosure under DR 4-101(C)(3) .
. . based only on the prediction that the client will lie on the witness
stand.").
In N.Y. City 81-81, this Committee considered whether a lawyer has a duty
to inquire into a client's source of funds for a series of transactions
in which the client uses "large sums" of cash. We concluded
that even though DR 7-102(A)(7), the applicable rule in those circumstances,
contained a requirement of actual knowledge by the lawyer that her client's
conduct is illegal or fraudulent, the lawyer could not turn a blind eye
toward her client's suspected illegal behavior:
[W]e do not believe that the Code intends to encourage
attorneys to be unduly naive or disregard the obvious. There are some
circumstances in which an attorney may be aware of facts which fall
short of actual knowledge but which still impose on him an obligation
to make inquiry to determine whether his client is engaged in unlawful
conduct. A lawyer may not purposely close his eyes to what he perceives
to be circumstances indicative of illegal or fraudulent conduct by a
client. Such selective blindness may be a disservice to the client and,
in some cases, has led to disciplinary proceedings against the attorney.
N.Y. City 81-81. Likewise, an attorney need not turn a blind eye to
circumstances that would lead a reasonable person to believe that a
client intends to commit a crime even though the lawyer does not "know"
that this is the client's intent. If a lawyer reasonably concludes after
due inquiry that the client has the intention to commit a future crime,
then the lawyer is permitted, but not required, to make disclosure to
the appropriate authorities to prevent the crime. Once the threshold
of reasonable belief of the client's intention to commit a crime is
surmounted, in determining whether to make permissive disclosure, the
lawyer should consider a number of factors, including "the seriousness
of the potential injury to others if the prospective crime is committed,
the likelihood that it will be committed and its imminence, the apparent
absence of any other feasible way in which the potential injury can
be prevented, the extent to which the client may have attempted to involve
the lawyer in the prospective crime [and] the circumstances under which
the lawyer acquired the information of the client's intent." EC
4-7.
Our conclusion is fortified by the confidentiality provision of the
ABA Model Rules, which allows a lawyer to disclose client confidences
"to prevent the client from committing a criminal act that the
lawyer believes is likely to result in imminent death or substantial
bodily harm. "ABA Model Rule 1.6(h)(i) (emphasis added). The comment
to this Rule provides that the lawyer may make disclosure to prevent
harm she "reasonably believes is intended by the client" because
"it is very difficult for a lawyer to 'know' when such a heinous
purpose will actually be carried out . . ." Similarly, the Restatement
(Third) of the Law Governing Lawyers allows a lawyer to "use
or disclose client confidential information when the lawyer reasonably
believes that its use or disclosure is necessary to prevent a crime
or fraud" in certain circumstances. Id. § 67 (emphasis
added); see also id. § 66 (permitting disclosure
of client confidential information when the lawyer "reasonably
believes that its use or disclosure is necessary to prevent reasonably
certain death or serious bodily harm to a person" (emphasis added)).
The Restatement also makes clear that "a client's subjective
state of mind[] may be difficult to ascertain" and therefore "the
lawyer must make a reasonable effort to determine the relevant facts"
before making any disclosure. Restatement, § 67, comment
h.
In the inquiry presented here, the lawyer possesses a suspicion that
the client has an intention to commit another crime based on the client's
intention to pay the lawyer's fees in cash and the absence of any obvious
means of support for the client. Although these facts standing alone
may be insufficient to warrant a reasonable belief that the client intends
to commit a crime, we conclude that if the lawyer learns of facts supporting
reasonable belief that the client intends to commit a future crime,
she may choose to make disclosure under the rule to prevent the crime.
CONCLUSION
The lawyer's duty of confidentiality is "the bedrock of the adversary
system. Without a duty of confidentiality, a lawyer would become an
agent of the state or of the opposing party." Simon at 289. Accordingly,
we conclude that DR 4-101(C)(3) does not permit disclosure of a client's
confidences and secrets based on the client's "continuing crime"
where the client has already completed conduct which satisfies all elements
of the crime and has sought to engage the lawyer to defend the client
against the criminal charges relating to that conduct. We also conclude
that a lawyer may not ethically disclose client confidential information
based upon her mere suspicion that a client intends to commit a future
crime, but that she must have a reasonable basis for believing that
the client intends to commit a crime before she is permitted to make
disclosure.
Issued: March, 2002
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