What must a lawyer do when a convicted client asks the lawyer to hold instruments bought with the proceeds of the crime?

Plain-English summary

A client convicted of embezzlement asked his lawyer, before sentencing, to accept and hold for safekeeping certain negotiable instruments the client had purchased with the proceeds of the crime. The committee addressed what the lawyer must do.

The committee explained that Canon 4's duty to preserve client confidences and secrets does not relieve the lawyer of his Canon 1 duty to help maintain the integrity of the profession, does not let him exceed the bounds of the law (Canon 7), and is not a device by which a client may conceal evidence by storing it with his lawyer or keep the benefits of his crime by depositing its proceeds with him. The committee drew a long-standing line between a lawyer's right to protect information acquired in representing a client and affirmative acts that suppress evidence or further criminal conduct. It contrasted passive cases (N.Y. State 405 (1975), where a lawyer had no duty to disclose the location of stolen property his client told him about; ABA 23 (1930); ABA 287 (1953)) with affirmative wrongdoing (In re Ryder, 263 F. Supp. 360, aff'd, 381 F.2d 713 (4th Cir. 1967), where a lawyer who moved a weapon and stolen money into his own box was held to have acted illegally and unethically and was not protected by privilege).

On that basis, the committee concluded the lawyer cannot accept and must immediately reject the proffered instruments. As to the client's belated disclosure, the committee said the Association's amendment of DR 7-102(B)(1) removed any doubt that the lawyer may remain silent and withhold from others the existence of the instruments; information that is "confidential" or "secret" under DR 4-101(A) need not be revealed (N.Y. State 454 (1976)), and the instruments' existence falls within the broad definition of a "secret."

Whether the lawyer may reveal the information is governed by DR 4-101(C); on these facts, because the instruments were not immediately relevant to any pending proceeding, the committee believed the lawyer should remain silent under DR 4-101(B)(1), and no other affirmative action was appropriate. It noted that a different situation could develop if, for example, the client volunteered to testify at sentencing or obtained a new trial, since continued representation could then foreseeably draw the lawyer into a violation of DR 7-102(A)(3)-(7), in which case he might properly consider withdrawal under DR 2-110.

Currency note

This opinion was issued in 1977, 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, a lawyer's duties toward evidence by Rule 3.4, and withdrawal by Rule 1.16). 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 a lawyer hold property bought with a client's crime proceeds?

A: Under this opinion, no. The committee held the lawyer must immediately reject the client's request to hold the negotiable instruments for safekeeping.

Q: Must the lawyer report what the client disclosed?

A: No. The committee held the existence of the instruments is a "secret" the lawyer may withhold, and on these facts the lawyer should remain silent because the instruments were not immediately relevant to any pending proceeding.

Q: What is the line between protecting a confidence and obstructing justice?

A: The committee drew it between passive non-disclosure of information acquired in the representation and affirmative acts that suppress evidence or further crime; it cited In re Ryder as the example of impermissible affirmative conduct.

Q: When might the lawyer have to withdraw?

A: If continued representation could foreseeably involve the lawyer in a violation, for example if the client volunteered to testify at sentencing or won a new trial, the committee said the lawyer might properly consider withdrawal under DR 2-110.

Background and rules framework

The opinion applies Canon 4 and DR 4-101 (confidences and secrets, and the limited circumstances for disclosure under DR 4-101(C)), the duty not to further crime or suppress evidence (Canon 1, Canon 7, DR 7-102), and DR 2-110 on withdrawal. The current Model Rule analogues are Rule 1.6 (confidentiality), Rule 3.4 (fairness; unlawful concealment of evidence), and Rule 1.16 (declining or terminating representation).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 3.4 (fairness to opposing party and counsel; evidence)
• MR 1.16 (declining or terminating representation)
• NY Canons 1, 4, 7; EC 1-4, EC 4-1, EC 7-27; DR 1-102, DR 2-110, DR 4-101, DR 7-102

Cases:

• In re Ryder, 263 F. Supp. 360, aff'd, 381 F.2d 713 (4th Cir. 1967), holding a lawyer who moved a weapon and stolen money acted illegally and unethically

Other opinions cited:

• N.Y. State 405 (1975): no affirmative duty to disclose the location of stolen property
• N.Y. State 454 (1976): a "secret" under DR 4-101(A) need not be revealed
• ABA 23 (1930); ABA 287 (1953)

See also

• NY State Bar Op. 479: A client's past crimes and plea bargaining (the Belge case)
• NY State Bar Op. 486: Disclosing a client's stated intent to commit suicide

Source

• Landing page: https://nysba.org/opinion-466/