Can a lawyer who sits on a charity's board disclose a client's undisclosed savings to prevent the client from continuing to receive aid he may not qualify for?

Plain-English summary

A lawyer served on a committee of a nonprofit charitable corporation that funded care for indigent persons. An elderly aid recipient, referred to as X, had stated on his application that he lacked funds, but the lawyer learned, through his separate representation of X's daughter in a guardianship matter, that X and the daughter held several thousand dollars in savings the daughter was using for X's care. The lawyer asked whether he could disclose the existence of those funds to the charity's committee.

The committee analyzed the duty under ABA Canon 37 and California Business and Professions Code section 6068(e), which require a lawyer to preserve the client's confidences and secrets. It read Canon 37's exception for "the announced intention of a client to commit a crime" narrowly. The committee concluded that the lawyer should hesitate to decide that every element of a crime would exist upon X's continued receipt of aid, and that the strict California rule favored the privilege even where the information was relevant or available from other sources.

The committee concluded that the acts the lawyer sought to prevent were not so serious that the benefit of prevention outweighed the policy of nondisclosure, and that a California lawyer could not voluntarily extend the crime exception to an intended civil fraud in the absence of any indication that the courts would so construe section 6068(e). It concluded that the lawyer should not make a voluntary disclosure unless he had no doubt of an imminent danger that a crime would be committed.

Currency note

This opinion was issued in 1959, before California adopted the former Rules of Professional Conduct (effective 1989) and long before the current rules that follow the ABA Model Rules format (effective November 1, 2018). It interpreted ABA Canon 37 and Business and Professions Code section 6068(e) as they then stood; both the statute and California's confidentiality rules have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

View original opinion

Common questions

Q: Could the lawyer tell the charity that the client had undisclosed savings?

A: Per the opinion, not voluntarily on these facts. The committee concluded the client's continued receipt of aid was not so serious a wrong that prevention outweighed the duty to preserve the client's secrets.

Q: Did California recognize a crime-prevention exception to confidentiality at the time?

A: The committee identified that Canon 37 contained an exception for a client's announced intention to commit a crime, but concluded it was operative only where the lawyer had no doubt of an imminent danger that a crime would be committed, and that it did not extend to preventing an intended civil fraud.

Q: Did it matter that the funds might appear in public records?

A: Per the opinion, no. The committee treated the duty as applying even where the facts were part of a public record or available from other sources.

Background and rules framework

The opinion predates the Model Rules and the numbered California rules. It interpreted ABA Canon of Professional Ethics 37 (preservation of client confidences) and California Business and Professions Code section 6068(e), the predecessors of today's confidentiality rule (Model Rule 1.6; California Rule 1.6). The committee anchored its analysis in the strict construction California courts had given section 6068(e).

Citations and references

Rules of Professional Conduct (as in effect at the time):

• ABA Canon of Professional Ethics 37 (preservation of confidences)

Statutes:

• California Business and Professions Code section 6068(e)
• California Code of Civil Procedure section 1881(2)

Cases:

• In re Fisher, 51 F.2d 424 (1931)

Other opinions cited:

• ABA Committee Opinions 23, 155, 156; LACBA Opinion 177

See also

• LACBA Ethics Op. 386: Disclosure of Client Perjury
• LACBA Ethics Op. 466: Disclosure of Evidence of Crime Received From a Client
• LACBA Ethics Op. 267: Guardian's Probable Misuse of a Ward's Funds
• LACBA Ethics Op. 274: Confidential Communications and Client Files

Source

• Landing page: https://lacba.org/?pg=ethics-opinions
• Original PDF: https://lacba.org/docDownload/2011013