Ezel / Ethics Opinions / MBAR
MBAR May 25, 2005

Can a lawyer tell the police that a client's business partner is the suspect in a crime against the lawyer?

Short answer: It depends on the source. If the lawyer's suspicion comes from confidential client information, disclosure requires the client's consent after consultation. If it comes from the lawyer's own direct observation of evidence, the information is not confidential and may be reported.

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This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer who was representing a client in a dispute with the client's business partner came to suspect that same partner of vandalizing the lawyer's car, and asked whether he could identify the partner to the police. The committee concludes the answer depends on how the lawyer came to suspect the partner, that is, whether the lawyer's information is confidential information of the client under Rule 1.6.

Rule 1.6(a) bars revealing confidential information relating to the representation unless the client consents after consultation. The opinion explains, drawing on Comments 5, 5A, and 5B, that confidential information reaches virtually all information relating to the representation, whatever its source, but not information that is so widely available or generally known that it need not be treated as confidential. If the lawyer came to suspect the partner because of information revealed by the client, that information is confidential and may be disclosed only with the client's informed consent, defined in Rule 9.1(c) as communication sufficient to let the client appreciate the significance of the matter.

If consent is given, the committee adds a limit: the consent is only for the purpose of letting the police investigate the vandalism, and only the confidential information necessary to achieve that purpose should be disclosed. By contrast, if the lawyer acquired the information by direct observation, for example by seeing the partner near the car when the vandalism occurred, that information is not confidential information protected by Rule 1.6. The committee relies on its prior Opinions 93-4 and 76-11 to conclude that a lawyer's direct observation of evidence of a crime is not "information relating to the representation," even when the suspect is in a dispute with the lawyer's client.

In practice

Under this opinion, conduct that reports a client's partner to the police is governed entirely by the source of the lawyer's knowledge. Per the opinion, where the suspicion rests on a client communication, the lawyer must obtain the client's informed consent under Rule 9.1(c) and then disclose only what is necessary for the investigation. Where the suspicion rests on the lawyer's own direct observation, the opinion concludes Rule 1.6 does not apply and the report is permitted.

Common questions

Q: Can a lawyer report a client's business partner to the police?

A: Yes, but the rule depends on the source. If the lawyer's suspicion is based on confidential client information, the lawyer needs the client's consent after consultation; if it is based on the lawyer's own direct observation, no consent is required.

Q: What counts as confidential information here?

A: Under Rule 1.6 and its comments, confidential information covers virtually all information relating to the representation, whatever its source, except information so widely available or generally known that it need not be treated as confidential.

Q: If the client consents, can the lawyer say everything he knows?

A: No. The opinion limits the disclosure to the purpose of the police investigation, so only the confidential information necessary to that purpose should be revealed.

Background and rules framework

The opinion interprets Mass. R. Prof. C. 1.6 (confidentiality of information) and its definition of confidential information in Comments 5, 5A, and 5B, which Massachusetts uses to exclude generally known or widely available information. It applies Rule 9.1(c)'s definition of "consultation" to determine when client consent is informed.

Citations and references

Rules of Professional Conduct:

  • Model Rule 1.6 / Mass. R. Prof. C. 1.6 (confidentiality of information)
  • Mass. R. Prof. C. 9.1(c) (definition of "consultation" for informed consent)

Other opinions cited:

  • MBA Opinion 93-4 (a lawyer's employee may tell police she suspects a particular client stole her purse)
  • MBA Opinion 76-11 (a lawyer who witnessed a former client commit a crime may reveal that client's identity to police)

See also

Source

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