NYSBA Committee on Professional Ethics
Disclosure of Information
Ethics Opinion 923
Background: The inquiring attorney received a client referral from a real estate agent. The would-be client held himself out to be an investor who was interested in purchasing a co-op apartment. After a number of email exchanges, the attorney was skeptical about the proposed arrangement and did not enter into a retainer agreement with the investor. However, the emails, on their face, could lead one to believe that the investor would have a reasonable expectation that an attorney-client relationship had been formed. The inquiring attorney then received a large sum of money from a third-party on behalf of the investor. Being even more skeptical, the inquiring attorney contacted the bank and learned that the check was fraudulent. The inquiring attorney asked whether he may provide the fraudulent check with the cover letter and envelope of the third-party, as well as the emails from the purported investor.
Opinion: The committee found that an individual whose purpose in communicating with an attorney is to defraud that attorney rather than to obtain legal services is not a client or a prospective client entitled to confidentiality. It would not violate any ethical rules for the attorney to disclose relevant information to investigators.