After a criminal client confesses to the lawyer and then fires the lawyer, can the former lawyer disclose the confession to the prosecutor?

Plain-English summary

A lawyer retained to defend a client on criminal sexual misconduct charges learned, in investigation, that the client admitted the acts and wanted treatment. After the preliminary examination, at which the victims testified and the client did not, the client was bound over and then discharged the lawyer. Later, the lawyer learned in casual conversation with the prosecutor that successor counsel had obtained a psychological evaluation, the victims recanted and stopped cooperating, and the prosecutor offered a reduced charge. The lawyer asked whether the client's confession should be disclosed.

The Committee concluded the confession was clearly a confidence under MRPC 1.6, which bars a lawyer from knowingly revealing or using a client's confidence or secret to the client's disadvantage except as the rule permits. It worked through the exceptions: MRPC 1.6(c)(3) (rectifying a client's illegal or fraudulent act furthered by the lawyer's services) did not apply because nothing showed the client used the lawyer's services to further illegal activity; and MRPC 3.3 (disclosure to avoid assisting a client's criminal or fraudulent act on a tribunal) did not apply because the client did not testify, commit perjury, or otherwise use the lawyer's services in a fraud. Citing RI-13, it concluded mere suspicion of false testimony, without independent knowledge, does not trigger the MRPC 3.3 duty. With no exception applicable, the lawyer was obligated to maintain the confidences and could not disclose them.

The Committee addressed two implicit questions. It concluded the lawyer had no discretion to disclose the confession absent the client's informed consent, and that the lawyer could not "discuss" the client's case with third parties to the extent that meant revealing confidences or secrets, again absent informed consent; but inquiries that simply asked about the case's resolution without revealing confidences were not prohibited.

Currency note

This opinion was issued in 1991 and interprets the Michigan Rules of Professional Conduct as they then stood. MRPC 1.6 and 3.3 have since been amended, and 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a discharged criminal-defense lawyer tell the prosecutor that the former client confessed?

A: No. The opinion concluded the confession is a confidence under MRPC 1.6 that may not be revealed without the client's consent, and the duty survives discharge.

Q: Does the lawyer at least have discretion to disclose if the lawyer thinks it is right?

A: No. The opinion concluded the answer is unequivocally no absent the client's informed consent, because no exception in MRPC 1.6 applied on these facts.

Q: Can the former lawyer even discuss the case with others?

A: The opinion concluded the lawyer may not disclose or reveal confidences or secrets in any such discussion without informed consent, though merely inquiring about how the case was resolved, without revealing confidences, is not prohibited.

Background and rules framework

The opinion interpreted MRPC 1.6 / Model Rule 1.6 (confidentiality, including its exceptions) and MRPC 3.3 / Model Rule 3.3 (candor toward the tribunal). It applied the exceptions narrowly, finding none triggered because the client neither used the lawyer's services in a fraud nor gave testimony the lawyer knew to be false, and tied the knowledge threshold to RI-13.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / MRPC 1.6 (confidentiality; the (c) exceptions)
• MR 3.3 / MRPC 3.3 (candor to the tribunal; disclosure to avoid assisting a client's crime or fraud)

Other opinions cited:

• RI-13: knowledge, not suspicion, triggers the duty regarding false testimony

See also

• Mich Ethics Op. RI-13: Client False Testimony
• Mich Ethics Op. RI-106: Former-Client Confidences
• Mich Ethics Op. RI-57: Prospective Client Confidences

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=942&Type=6

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

RI-72

March 1, 1991

SYLLABUS

A client's confession of commission of a crime to the client's lawyer is a confidence which may not be revealed by the lawyer unless the client consents. The lawyer's duty to protect the client's confidences and secrets continues even after the lawyer is discharged.

References: MRPC 1.6, 3.3; RI-13.

TEXT

A lawyer was retained by a client's family to defend the client in a prosecution for charges of criminal sexual misconduct. The lawyer conducted an investigation, including conversations with the client in which the client admitted the acts and indicated a need for treatment. The lawyer represented the client through the preliminary examination at which the victims testified and the client did not. The client was bound over for trial. Shortly thereafter, the client discharged the lawyer.

Later, in casual conversation with the prosecutor, the lawyer learns that successor counsel obtained a psychological evaluation of the victims, and that the victims subsequently recanted their testimony and refused to cooperate with the prosecutor. The prosecutor offered a reduced charge and related plea agreement. The lawyer now asks whether the client's confession should be disclosed.

The client's confession to the lawyer was clearly a confidence under MRPC 1.6, which states:

"(a) 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:

"(1) reveal a confidence or secret of a client;

"(2) use a confidence or secret of a client to the disadvantage of the client; or

"(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.

"(c) A lawyer may reveal:

"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;

"(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;

"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;

"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and

"(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.

"(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee."

Pursuant to MRPC 1.6(b)(2) a lawyer may not knowingly use a confidence or secret of a client to the disadvantage of the client, unless permitted under MRPC 1.6. Under MRPC 1.6(c), a lawyer may reveal confidences and secrets "to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used."

There is nothing in these facts which suggests the client used the lawyer's services in the course of the representation to further illegal or fraudulent activity.

MRPC 3.3 prohibits a lawyer from knowingly "failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." The client did not testify, did not commit perjury, or otherwise commit a fraudulent or criminal act in which the lawyer's services were used, therefore the duty does not apply. None of the other exceptions to the prohibition against a lawyer's disclosure of confidences is applicable. Therefore, the lawyer is obligated to maintain the client's confidences and may not disclose them. Mere suspicion of false testimony or inconsistent statements of a client, where the lawyer has no independent knowledge of the truth or falsity, are not sufficient to trigger the lawyer's duty under MRPC 3.3. See RI-13.

Implicit in the facts are two additional questions. First, even if the lawyer does not have a duty to disclose the client's confession, does the lawyer have discretion to so disclose? The answer is unequivocally no, in the absence of informed consent from the client. See, MRPC 1.6.

Second, may the lawyer discuss the client's case with third parties, without the consent of the client or the client's successor counsel? To the extent that "discuss" includes disclosing or revealing confidences or secrets, the answer is unequivocally no, without the informed consent of the client. If "discuss" means inquiries to find out the resolution of the case involving the client, without disclosing confidences or secrets, then those "discussions" are not prohibited.