Can a lawyer report a client to the police when the client commits a crime against the lawyer, even though the lawyer owes the client a duty of confidentiality?

Plain-English summary

The opinion addresses what a lawyer may disclose when a client, prospective client, or someone posing as one commits a crime against the lawyer. It works through four scenarios: a fraudulent-check collection scam discovered after the lawyer disburses funds; the same scam caught before the lawyer accepts the engagement; a client who shoots the lawyer or the lawyer's paralegal during an office meeting; and a client who steals the lawyer's wallet. The starting point is Rule 1.6(a), under which a lawyer ordinarily may not reveal information relating to the representation of a client without informed consent, and Rule 1.18(b), which extends a similar duty to prospective clients.

The committee first explains when no confidentiality duty exists at all. Where a person never intended to seek legal services and entered the relationship only to defraud the lawyer, there is no bona fide client-lawyer relationship, so the information is not protected. The opinion observes that "a person who pretends to seek a lawyer's services solely for purposes of defrauding the lawyer is not a prospective client" under Rule 1.18. But it cautions that where a real client-lawyer relationship exists, Rule 1.6 is broad, covering even the client's identity and any disclosure that could lead a third person to protected information, so most details of a client's crime against the lawyer will fall within the duty.

The opinion then walks through Rule 1.6(b)'s express exceptions: 1.6(b)(1) (preventing reasonably certain death or substantial bodily harm), 1.6(b)(3) (preventing or rectifying substantial financial injury to others from a crime in which the lawyer's services were used), and 1.6(b)(5) (establishing a claim or defense in a controversy between lawyer and client). It concludes that none of these reliably covers the lawyer-as-victim situation; for instance, 1.6(b)(5) would not justify an initial report to law enforcement because "a criminal investigation or prosecution is not a controversy between the lawyer and the client."

To fill the gap, the committee recognizes an implicit exception, grounded in the Scope section's statement that the Rules "are rules of reason" interpreted with reference to the purposes of representation and of the law. The opinion reasons that requiring silence "would make lawyers too easy a target of clients' crimes" and would deny them the redress available to other crime victims, while confidentiality is not needed to encourage clients to seek help in this situation. As the opinion puts it, lawyers "cannot reasonably be expected to take a bullet from the client and to keep quiet about it." The exception is permissive, limited to what is reasonably necessary, and extends to crimes against the lawyer's staff or family only when the lawyer is a witness.

In practice

Under this opinion, a lawyer who is victimized by a client's crime may report it to law enforcement and disclose information relating to the representation to the extent reasonably necessary for investigation, prosecution, or to obtain medical care, insurance, restitution, or similar redress. The opinion limits the disclosure to what is reasonably necessary: in the fraud scenario it may be necessary to explain how the fraud worked, while in the shooting and theft scenarios the opinion states it "would probably not be reasonably necessary to disclose much beyond the client's identity and what occurred relating to the crime."

The opinion also addresses what follows the disclosure. It holds that the client-lawyer relationship "almost certainly cannot continue" after the lawyer reports the client's crime, that the lawyer ordinarily must inform the client under Rule 1.4 that the disclosure will be or was made, and that the lawyer must withdraw under Rule 1.16(a)(3) if discharged or if the conflict materially impairs competent representation. The exception imposes no duty to report; it gives the lawyer discretion.

Common questions

Q: If a client defrauds me through a fake-check scam, can I report it even though I represented them?

A: Per the opinion, yes. If the person never intended to obtain legal services and only sought to defraud you, there was no bona fide client-lawyer relationship and no confidentiality duty. Even where a real relationship existed, the implicit exception lets you disclose what is reasonably necessary to report the crime.

Q: A client assaulted me or stole from me in my office. May I tell the police, and how much can I say?

A: The opinion concludes you may report the crime, but limits disclosure to what is reasonably necessary, which it suggests will ordinarily be little more than the client's identity and what happened, not a fuller account of the representation.

Q: Can I report a client's crime against my paralegal or a family member?

A: Per the opinion, the implicit exception reaches crimes against someone associated with or related to the lawyer, but ordinarily only when the lawyer is a witness and only to the extent disclosure is reasonably necessary.

Q: Does this opinion require me to report a client who victimizes me?

A: No. The opinion states the exception is permissive and "imposes no affirmative duty on lawyers to report clients' crimes" when the lawyer or someone associated with or related to the lawyer is the victim.

Q: What happens to the representation after I report?

A: The opinion concludes the relationship almost certainly cannot continue. You ordinarily must inform the client of the disclosure under Rule 1.4, and you must withdraw under Rule 1.16(a)(3) if the client discharges you or the conflict materially impairs your ability to represent the client competently.

Background and rules framework

The opinion interprets Model Rule 1.6 (confidentiality of information), both the general duty in 1.6(a) and the express exceptions in 1.6(b), together with Rule 1.18 (duties to prospective clients) and Rule 1.9(c) (duties to former clients). It draws on the Scope section's "rules of reason" principle to recognize an implicit exception, by analogy to earlier implied exceptions later codified, such as outside consultation about compliance (now Rule 1.6(b)(4)) and conflict checking when lawyers change firms (now Rule 1.6(b)(7)). The post-disclosure analysis applies Rule 1.4 (communication with the client) and Rule 1.16(a)(3) (mandatory withdrawal on discharge), and Rule 5.3 governs a nonlawyer staff member's parallel disclosure.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality), including 1.6(a) and exceptions 1.6(b)(1), (3), (5), (7)
• ABA Model Rule 1.18 (prospective clients), 1.9(c) (former clients)
• ABA Model Rule 1.4 (communication), 1.16(a)(3) (mandatory withdrawal)
• ABA Model Rule 5.3 (responsibilities regarding nonlawyer assistance)

Other opinions cited:

• ABA Formal Op. 511R (2024): confidentiality obligations of lawyers posting to listservs
• ABA Formal Op. 496 (2021): responding to online criticism, on the scope of Rule 1.6(b)(5)
• ABA Formal Op. 09-455 (2009): confidentiality exception for conflict checking when changing firms
• N.Y. City Bar Ass'n Op. 2015-3 (2015): lawyers who fall victim to internet scams
• N.Y. State Bar Ass'n Op. 923 (2012): no confidentiality duty where a purported client intends only to scam the lawyer
• Ky. Bar Ass'n Op. E-455 (2022) and N.C. State Bar Formal Op. 2021-2 (2021): sham clients and fraudulent-check scams

See also

• NYC Bar Ethics Op. 2015-3: Lawyers Who Fall Victim to Internet Scams
• ABA Formal Op. 511R: Confidentiality When Posting to Listservs
• ABA Formal Op. 496: Responding to Online Criticism
• ABA Formal Op. 480: Confidentiality in Blogging and Public Commentary

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-515.pdf