Can a criminal defense lawyer tell the authorities where the client hid the stolen property the client is charged with taking?

Plain-English summary

A client charged with petit larceny told his lawyer that he committed the crime and was concealing the stolen property. The committee addressed whether the lawyer could reveal the property's location to the authorities. It started from the confidentiality framework: CPLR 4503(a) and DR 4-101(B) bar a lawyer from revealing a client's confidences and secrets, and EC 4-1 grounds that duty in the lawyer-client fiduciary relationship and the proper functioning of the legal system.

The committee acknowledged that DR 4-101(C)(3) lets a lawyer reveal a client's intention to commit a crime, and reasoned that the ongoing concealment could be read as a continuing crime. But it stressed that this provision is permissive, not mandatory, so the lawyer had no affirmative duty to disclose.

On whether disclosure would be a proper exercise of discretion, the committee concluded it would be improper. Concealment by the thief, though a separate crime, is normally incident to the larceny, and the inference of guilt drawn from recent exclusive possession means evidence of the concealment would be evidence of the larceny itself. By revealing the location, the lawyer would assume a role adverse to the client and would be doing indirectly what he could not do directly. The committee distinguished the fugitive-client opinions (N.Y. County 462 (1958), ABA 23 (1930), and the withdrawn ABA 155 (1936)), noting those involved continuing crimes unrelated to the charge, whereas here the confidence related, if indirectly, to the past crime charged against the client.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality is now governed by Rule 1.6). 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 Treat this page as historical context, not current guidance.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 criminal defense lawyer report where the client hid stolen property?

A: Under this opinion, no. The committee read DR 4-101(C)(3)'s exception for a client's intention to commit a crime as permissive only, so the lawyer had no affirmative duty to disclose.

Q: Could the lawyer disclose the location voluntarily as a matter of discretion?

A: The opinion concluded it would be improper to do so without the client's consent, because revealing the concealment would expose the client on the larceny charged and place the lawyer in a role adverse to the client.

Q: Why did the committee treat the fugitive-client opinions differently?

A: Per the opinion, those opinions involved continuing crimes unrelated to the charge against the client, while disclosing the stolen property's location related to the past larceny actually charged.

Background and rules framework

The opinion applies the then-current New York Code's confidentiality provisions, Canon 4, EC 4-1 and 4-5, and DR 4-101(B) and (C), alongside CPLR 4503(a). The current analogue is Rule 1.6 (confidentiality of information). The opinion noted that the crime-fraud principle removes the privilege from communications made in furtherance of a crime or fraud, but found that principle did not convert the lawyer's permissive disclosure option into a duty here.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• NY Canon 4; EC 4-1, EC 4-5; DR 4-101(B)(1), (B)(2), (C)(1), (C)(3)

Statutes:

• N.Y. CPLR 4503(a) (attorney-client privilege)

Cases:

• People v. Farmer, 194 N.Y. 251 (1909), crime-fraud limit on privilege
• People v. Peterson, 60 App. Div. 118 (1901), crime-fraud limit on privilege
• People v. Hunter, 139 Misc. 270 (Ct. Gen. Sess. 1931), crime-fraud limit on privilege

Other opinions cited:

• N.Y. County 462 (1958): no duty to disclose a fugitive client's whereabouts
• ABA 23 (1930): no duty to reveal a fugitive client's location
• ABA 155 (1936): duty to disclose a fugitive's hiding place (later withdrawn by ABA 84-349 (1984))

See also

• NY State Bar Op. 466: Proceeds of crime and client confidences
• NY State Bar Op. 454: No duty to disclose a client's concealed assets
• NY State Bar Op. 410: A partnership's conflict from a former client on the same accident

Source

• Landing page: https://nysba.org/opinion-405/