Can a criminal defense lawyer warn the authorities that the client's associates plan to murder a witness?
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This page answers the general question as of 1990. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A client apprehended selling stolen goods to a fence told his lawyer that one of the fences had said not to worry about the witness X, because they were going to have X killed. X had tipped off the police. The lawyer asked whether he could warn the authorities about the danger to X.
The committee worked through several readings of the facts. First, the information might be a confidence or secret under DR 4-101(A) if the client imparted it seeking legal advice about his own culpability for the prospective murder or its effect on the case against him. Even so, the committee concluded the lawyer would have discretion under DR 4-101(C)(3) to reveal enough to prevent the crime, because the client sufficiently "intends" the crime when he is legally an accomplice or participant in his associates' plan, even if the associates had their own additional reasons. Second, if the client merely knew of the plan without being an accomplice, the committee reasoned by analogy: because the primary policy of DR 4-101(C)(3) is preventing harm to third parties, a lawyer has discretion to reveal closely related confidential information that a third party is about to commit a crime in order to prevent it. Third, if the client did not impart the information to seek legal advice at all (it concerned a future crime against a witness in the present case), the revelation might be extraneous to the professional relationship and so neither a confidence nor a secret, in which case the lawyer may reveal it.
On whether the lawyer must warn the client before disclosing, the committee declined to state an absolute rule. A lawyer ordinarily must warn a client before taking action with a substantial adverse impact on the client's interests, but the committee recognized that a lawyer may reasonably believe his personal safety would be endangered by such a warning, leaving the decision to the lawyer in each case. The committee limited the opinion to the lawyer's ethical responsibility, expressly not addressing any tort duty to warn or the lawyer's obligations if X were actually killed, pointing to DR 7-102(B)(1) and Opinion 89-1 for some of those issues.
Currency note
This opinion was issued in 1990, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can the lawyer warn the authorities that the client's associates plan to kill a witness?
A: Yes, the committee concluded the lawyer has discretion to reveal enough to prevent the murder. If the information is protected, DR 4-101(C)(3) or its analogy permits the disclosure; if it was not imparted to seek legal advice, it may not be protected at all.
Q: Does it matter whether the client is part of the murder plan?
A: For the rule's purposes, the committee said the client "intends" the crime when he is legally an accomplice or participant. If he merely knows of it, the committee allowed disclosure by analogy to DR 4-101(C)(3), given that rule's purpose of preventing harm to third parties.
Q: Must the lawyer warn the client before disclosing?
A: The committee declined to set an absolute rule. A lawyer ordinarily warns a client before acting against the client's interests, but the committee recognized a lawyer may reasonably fear for his own safety, leaving the judgment to the lawyer.
Background and rules framework
The opinion interpreted DR 4-101(A) (defining confidences and secrets), DR 4-101(C)(3) (discretion to reveal a client's intent to commit a crime and information needed to prevent it), and the boundary of the professional relationship that determines whether information is protected at all. Those provisions correspond today to Model Rule 1.6 (confidentiality and its exceptions to prevent harm). The committee cited Colman v. Heidenreich on judicial skepticism that a client seeks legal advice about another person's crime.
Citations and references
Rules of Professional Conduct:
- DR 4-101(A) / Model Rule 1.6 (definition of protected client information)
- DR 4-101(C)(3) / Model Rule 1.6(b) (revealing intent to commit a crime; preventing harm)
- DR 7-102(B)(1) (referenced for the lawyer's obligations if the crime occurs)
Cases:
- Colman v. Heidenreich, 269 Ind. 419, 381 N.E.2d 866 (1978) (whether a client's statement about another's crime is privileged)
Other opinions cited:
- MBA Opinion 89-1 (disclosure obligations when a client commits a crime or fraud)
See also
- MA Bar Ethics Op. 90-2: Disclosing a former client's record to prevent a crime
- MA Bar Ethics Op. 91-4: A criminal client's lies to a probation officer and the duty to disclose
Source
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