NY Daily Record Since 1908
John E. Bernacki
It’s an interesting question: Should you learn that a client intends to kill or seriously harm another person, or otherwise commit a crime, what are you ethical obligations? Are you required to disclose the information or is doing so a discretionary decision?
The New York State Bar Association’s Committee on Professional Ethics addressed that very issue in Opinion 866 (May 23).
In this case, the inquiring attorney overheard a client tell another individual that he intended to use a water sample from a source other than the building he owned in order to meet water quality standards. The attorney had represented the client and a business partner in the formation of a business entity that would be housed in the building at issue.
At the time that the attorney overheard the conversation regarding water samples, notice of the formation of the company had been published, but an operating license had not yet been issued. The attorney overheard the conversation in question while representing only the client, and not his business partner, in regard to an unrelated legal matter.
The attorney wondered what his obligations were in this situation — especially since he believed that his representation of the client and his partner in regard to the formation of the business entity had ended. Was he required to disclose this information to the relevant authorities or did he have discretion regarding the disclosure?
At the outset, the committee noted that if the information overheard by the attorney was not confidential, then the inquiring attorney could freely disclose the information; the rules regarding disclosure were triggered only if the information was confidential and obtained during the representation of the client.
The committee explained that “[i]nformation is confidential if the lawyer acquires the information ‘during’ a representation, provided there is some connection between the lawyer’s activities on behalf of the client and the lawyer’s acquisition of the information, but information ‘relating to’ the representation of a client may be confidential information even if it is acquired after the client-attorney relationship to which it relates has ended.”
The committee then turned to the heart of the issue: Assuming that the information was confidential, was the attorney required to disclose the information he’d learned?
The committee examined the applicable rules, Rules 1.6 and 1.9(c), and the exceptions thereto. The committee explained that Rule 1.6(b)(2) does not permit disclosure of confidential information concerning a completed or past crime and only permits disclosure of confidential information when needed to prevent a continuing crime or a crime that may occur in the future.
The committee then concluded that in the case at hand, the lawyer had discretion as to whether to disclose the information he’d learned:
“Under the New York Rules of Professional Conduct, a lawyer is permitted (but is not required) to disclose confidential information of a current or former client if the lawyer reasonably believes disclosure is necessary to prevent reasonably certain death or substantial bodily harm or to prevent the commission of a crime by the client or former client.”
Finally, the committee explained that regardless of the attorney’s decision, he would be wise to discuss the situation with his client and, as suggested in Comment 6[A] to Rule 1.6, the attorney could use the threat of disclosure of the intended criminal conduct as a way of to convincing the client not to go forward with it.
This scenario has always been a dicey one for attorneys, so the guidance and useful commentary provided in this opinion is particularly welcome. Now, should you learn that your client intends to commit a crime, at least you know how to proceed.
The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford, N.Y. He can be reached at www.johnbernackilaw.com.
