If a lawyer learns during a deposition or sworn statement that a non-client probably committed tax crimes, must the lawyer report it, and can the lawyer report it without the client's consent?

Plain-English summary

The Committee addressed a lawyer who, while taking a deposition or a sworn statement from a non-client, learned that the non-client had probably failed to file income tax returns or had failed to report earned income. The lawyer asked a series of questions: whether there was an ethical duty to report the probable violation, whether the lawyer's posture (adverse party in litigation, or counsel for the non-client's insurer taking an examination under oath) changed the answer, and whether reporting or not reporting would violate duties to the lawyer's own client or to the non-client.

The opinion concluded there was no ethical duty to report. It distinguished Opinion No. 205, which required disclosure of a party's admitted perjury because perjury directly harms the administration of justice in a tribunal where the parties appear. The probable tax violations here did not directly affect the administration of justice in any such tribunal, so Rule 8.4(d) did not impose a reporting duty. The opinion concluded the answers to whether a duty existed were "no," which mooted the question of whether failure to report would be excusable.

On the non-client, the opinion concluded that Rule 1.6 governs confidentiality between a lawyer and the lawyer's own client, not non-clients, so reporting the non-client's probable past crime would not violate any ethical duty owed to the non-client.

On the lawyer's own client, the opinion concluded the information was "information relating to representation of a client" subject to Rule 1.6, regardless of whether it came from a deposition or sworn statement, because confidentiality covers all information relating to the representation whatever its source. Because the lawyer had no ethical duty of disclosure, absent a legal duty the lawyer could not report without the client's consent after consultation under Rule 1.6(a), and had to explain the matter, including any negative ramifications, so the client could make an informed decision (Rule 1.4(b)). If the lawyer determined the law required reporting, the lawyer should first seek the client's consent, but could report even if the client refused, because Rule 1.6(c) permits revealing information to the extent required by law or court order (citing Mississippi Bar Informal Advisory Opinion No. 64).

Currency note

This opinion was issued in 1993, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but 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: Must a lawyer report a non-client's probable tax crime learned in a deposition?

A: The opinion concluded no; Rule 8.4(d) does not impose a reporting duty for a probable past crime that does not directly affect the administration of justice in a tribunal where the parties appear, unlike admitted perjury in Opinion No. 205.

Q: Can the lawyer report it without the client's consent?

A: Per the opinion, no, unless the law requires reporting. The information is protected by Rule 1.6, so absent a legal duty the lawyer needs the client's informed consent after consultation; if the law mandates the report, the lawyer may make it even over the client's objection under Rule 1.6(c).

Q: Does the lawyer owe the non-client any duty not to report?

A: The opinion concluded no; Rule 1.6 governs confidentiality toward the lawyer's own client, not non-clients, so reporting the non-client's probable crime does not breach a duty to the non-client.

Background and rules framework

The opinion applies Mississippi Rules of Professional Conduct 8.4(d) (conduct prejudicial to the administration of justice), 1.6 (confidentiality, including the 1.6(a) consent requirement and the 1.6(c) law-or-court-order exception), and 1.4(b) (explaining a matter so the client can make informed decisions), which correspond to the same-numbered Model Rules. It distinguishes Rule 3.3(a)(2) (candor regarding a client's perjury) as addressed in Opinion No. 205.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 1.6 (confidentiality; 1.6(a) consent, 1.6(c) law/court-order exception) (cf. Model Rule 1.6)
• MRPC 1.4(b) (explaining a matter for informed client decisions) (cf. Model Rule 1.4)
• MRPC 8.4(d) (conduct prejudicial to the administration of justice) (cf. Model Rule 8.4)
• MRPC 3.3(a)(2) (candor; client perjury), discussed via Opinion No. 205 (cf. Model Rule 3.3)

Other opinions cited:

• Mississippi Ethics Opinion No. 205: duty to report admitted perjury.
• Mississippi Bar Informal Advisory Opinion No. 64 (May 20, 1993): disclosing non-client information when mandated by law.

See also

• MS Bar Ethics Op. 221: Reporting Out-of-State UPL
• MS Bar Ethics Op. 220: Suing a Former Law Partner
• MS Bar Ethics Op. 218: Joint Defense Conflict

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/213/
• Original PDF: https://www.msbar.org/media/1461/35a_et_op_213.pdf

Original opinion text

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

ETHICS OPINION NO. 213

OF THE MISSISSIPPI BAR

RENDERED November 18, 1993

ETHICAL OBLIGATION TO REPORT PROBABLE PAST CRIMINAL VIOLATION BY NON-CLIENT -An attorney who learns in the course of taking a deposition or sworn statement from a non-client that the non-client has failed to file federal or state income tax returns or has failed to report earned income on returns he has filed is under no ethical obligation to report such probable past criminal violations by the non-client. In the absence of a legal obligation to report such probable violations, the attorney may report such probable violations with his client's informed consent. If the attorney is required by law to report such violations, he may do so even though his client does not consent.

The Ethics Committee of The Mississippi Bar has been requested to issue an opinion as to the ethical considerations in the following situations:

1. Taking a deposition of a non-client, a lawyer learns that the non-client either has failed to file federal and state income tax returns or that the non-client has not reported earned income on returns the non-client has filed:

2. The lawyer learns the same information while taking a sworn statement from the non-client.

Specifically, the Committee has been asked for an opinion on the following questions arising from these situations:

Question A: Does an attorney who becomes privy to information in a sworn statement by a non-client regarding a probable past violation of state or federal law have an ethical duty to report such violation of law to the appropriate legal authorities?

Question B: Does the fact that the attorney represents an adverse party in litigation and obtained the non-clients (sic) sworn statement by way of discovery in a civil action affect the duty addressed in Question A?

Question C: Does the fact that the attorney represents the non-client's insurance company and obtained the non-client's statement under a provision of an insurance policy requiring the non-client to submit to examination under oath in connection with a claim under the insurance policy affect the duty addressed in Question A?

Question D: Whether or not reporting is required, would a report of probable criminal conduct on the part of the non-client under either Situation 1 or Situation 2 violate any ethical duty owed by Lawyer D to his client?

Question E: Whether or not reporting is required, would a report of probable criminal conduct under either Situation 1 or Situation 2 violate any ethical duty owed by Lawyer D to the non-client?

Question F: Is information regarding a non-client, obtained in the circumstances set out in Situations 1 and 2 above, considered "information relating to representation of the client" subject to the confidentiality provisions of Rule 1.6?

Question G: If a duty to report a probable past violation of law by a non-client exists, would a failure to report be excusable?

Question H: If a duty to report a probable past violation of law by a non-client exists, would a failure to report be ethically excusable if the lawyer reasonably believes that to make the report would injure the interests of his client and/or his client refuses to consent to reporting after consultation?

The questions raised here differ from those addressed by this Committee in Opinion No. 205. There, we held that the Mississippi Rules of Professional Conduct impose obligations of disclosure upon both counsel representing a party and counsel adverse to the party upon admission by the party to having committed perjury in another proceeding - a clear admission of a criminal violation prejudicial to the administration of justice. M.R.P.C. 3.3(a)(2) and the comment thereto deal specifically with a lawyer's obligations when the lawyer learns of his client's perjury. We recognized in Opinion No. 205 opposing counsel's similar obligation to report admitted perjury regardless of whether the attorney's own client believed that to be in the client's best interest because:

the necessity to protect the integrity of the administration of justice outweighs the personal considerations of the client and in fact, inures to the client's benefit by insuring the client of the same nonprejudicial administration of justice in the various tribunals in which the liens may appear.

The probable past criminal violations posited here are of a different nature: they do not directly impact the administration of justice in any tribunal in which the parties are appearing or have appeared. Under the circumstances, Rule 8.4(d), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice,

does not impose upon the attorney the ethical obligation to report the admission by the non-client. Accordingly, the answers to Questions A, B, and C are no - the attorney has no ethical obligation under the Mississippi Rules of Professional Conduct to report the probable past violation. This conclusion renders Question G moot.

Question E inquires of any ethical obligation owed by the lawyer to the non-client not to report the probable past criminal conduct by the non-client. M.R.P.C. 1.6, which deals with confidentiality of information, establishes ethical obligations between the lawyer and that lawyer's own client, not non-clients. Accordingly, a lawyer's decision, for whatever reason, to report a non-client's probable past criminal violation under the circumstances here presented does not violate any ethical obligation to the non-client.

The Committee recognizes that there may be legal obligations concerning reporting of probable violations of federal or state income tax laws. Such obligations, if any, are beyond the scope of matters upon which this Committee can opine. The existence or non-existence of such obligations, though, impacts upon the remaining questions posed. Those questions - D, F, and H - relate to considerations of ethical obligations to a lawyer's own client arising from a report of the probable past criminal conduct by the non-client.

Question D is abstract and cannot be answered as stated; however, when that question is read in conjunction with Questions F and H, the overall inquiry is how Rule 1.6 impacts upon the lawyer's obligation to his own client if the lawyer has determined that he should report the non-client's probable past criminal violation. The Committee concludes that:

1. The information regarding the non-client, obtained under circumstances presented here, is "information relating to representation of a client" subject to the provisions of Rule 1.6. As the comment to Rule 1.6 states, "[t]he confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." The circumstances under which the attorney learned this information (deposition, sworn statement) does not affect this analysis.

2. Since the lawyer is under no ethical obligation of disclosure, in the absence of any legal obligation to disclose the information, the lawyer may not do so without the consent of his client after consultation. M.R.P.C. 1.6(a). Of course, the lawyer must explain the matter to the extent necessary to permit the client to make an informed decision concerning that question, including any potential negative ramification for the client. See M.R.P.C. 1.4(b);

3. If the lawyer determines that he is obligated by law to report the probable past criminal violation, he should first seek his client's informed consent. If the client refuses that consent, the lawyer may proceed to make any report required by law. Rule 1.6(c) provides that "[a] lawyer may reveal such information to the extent required by law or court order." (Emphasis supplied). See also, Mississippi Bar Informal Advisory Opinion No. 64 (May 20, 1993) (an attorney may disclose information about a non-client otherwise falling within the scope of Rule 1.6 when disclosure is mandated by law).