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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 2002-1
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?
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.
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.
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:
Issued: March, 2002