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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?

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