Must a lawyer stop a staff member from telling police which client she thinks stole money from her purse at the office?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
Money was stolen from an employee's purse in a lawyer's office. The police wanted to know whom the employee suspected, and she believed one of two clients who had been in the office was the thief and wished to give their names. The lawyer asked whether the confidentiality obligation barred him and his employee from revealing the clients' names; the employee would follow his advice.
The committee acknowledged that DR 4-101(D) requires a lawyer to use reasonable care to prevent employees from disclosing a client's confidences and secrets, but held that the information here did not fall within that protection. Drawing on its Opinion 76-11 (a lawyer who saw a former client commit an assault) and the now-withdrawn ABA Opinion 155, the committee distinguished information acquired as a witness from information gained in the professional relationship. The employee's observation was not something the client revealed to obtain legal advice; it concerned the commission of a crime against her, and it made no difference that she observed it in the office or that she knew the client's identity only because the client had come there.
The committee concluded that the confidentiality obligation does not give a client "open season" on a lawyer or the lawyer's staff. Because the identity was not being revealed in connection with the professional relationship, neither the lawyer nor the employee was barred from disclosing it. The committee added that the employee's uncertainty about which client was the thief did not change the confidentiality analysis; it went only to the strength of her statement to the police.
Currency note
This opinion was issued in 1993, 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 Treat this page as historical context, not current guidance.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: Does attorney confidentiality cover a client who commits a crime in the law office?
A: Not on these facts. The committee held that an employee's observation of an apparent theft against her was acquired as a witness, not in the professional relationship, so DR 4-101 did not protect the client's identity from disclosure.
Q: Does it matter that the staff member knew the client only because he came to the office?
A: No. The committee said the fact that the employee knew the client's identity only because he came to the office did not prevent revelation, because the identity was not being revealed in connection with the professional relationship.
Q: Does it matter that the employee was not certain which client took the money?
A: The committee said her uncertainty did not affect the confidentiality issue; it only went to the strength of her statement to the police.
Background and rules framework
The opinion applied DR 4-101 (preservation of confidences and secrets), corresponding to Model Rule 1.6, and specifically DR 4-101(D) (a lawyer's duty to prevent employees from disclosing client confidences), corresponding to Model Rule 5.3 (responsibilities regarding nonlawyer assistants). The analysis turned on the line between information gained in the professional relationship and information acquired as a witness.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.6 / DR 4-101 (confidences and secrets)
- Model Rule 5.3 / DR 4-101(D) (preventing nonlawyer staff from disclosing confidences)
Other opinions cited:
- MBA Opinion 76-11 (information acquired by witnessing a former client's crime is not a protected secret)
- ABA Formal Opinion 155 (1936) (since withdrawn) and ABA Formal Opinion 84-349
See also
- MA Bar Ethics Op. 94-5: Cellphone confidentiality
- MA Bar Ethics Op. 93-3: Trustee's lawyer and misappropriated trust funds
Source
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