Must a criminal defense lawyer disclose past crimes and the location of bodies a client revealed in confidence?

Plain-English summary

This opinion, prepared in 1974 and held until the underlying proceedings concluded, arises from the facts behind People v. Belge, 83 Misc. 2d 186 (1975), the Lake Pleasant bodies case. A client charged with homicide told his lawyer in confidence that he had committed two unrelated killings and showed the locations of the bodies on a diagram. The lawyer went to the sites, photographed the bodies, moved part of a dismembered body to bring it into camera range, later destroyed the photographs, his notes, and the diagram, disclosed nothing to the authorities, and during plea discussions suggested he could provide information about two unsolved murders. The committee addressed four questions.

On the first, the committee held the lawyer's failure to disclose his knowledge of the two prior homicides was not improper, because the information came to him during the representation; disclosure would have violated Canon 4, EC 4-1, and DR 4-101(B). It explained that proper representation requires full client disclosure, which depends on assured confidentiality, and that the narrow exceptions in DR 4-101(C) and DR 7-102(B)(1), for a client's intended future crime or a fraud during the representation, or client consent, did not apply. The lawyer's knowledge of the body locations came solely from the privileged communication and could not be revealed without the client's permission. On the second question, the committee held the lawyer's notes, the diagram, and material prepared by the client were privileged communications and work product, not fruits or instrumentalities of the crime, so destroying them, if not contrary to the client's wishes, violated no ethical standard.

On the third question, the committee did not pass on the legality of moving part of a body, but cautioned that any tampering with or destruction of physical evidence in violation of N.Y. Penal Law section 215.40 would also violate the Code, and that even absent illegality or intent, moving a body could create an appearance of impropriety under Canon 9 and should be avoided. On the fourth question, the committee found no impropriety in the lawyer discussing a possible plea disposition with the district attorney, including suggesting he could help resolve open cases, provided he had the client's express consent before any disclosure, because plea bargaining with client consent serves the client and could, for example, support confinement for medical treatment rather than imprisonment.

Currency note

This opinion is based on facts from 1974 and was issued in 1978, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality and its exceptions are now governed by Rule 1.6, a lawyer's duties regarding evidence by Rule 3.4, and misconduct by Rule 8.4). The treatment of physical evidence and a lawyer's obligations is also shaped by criminal law that should be checked directly. 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 defense lawyer reveal past crimes a client confides?

A: Under this opinion, no, where the information came during the representation. The committee held disclosure would violate the duty to preserve confidences under Canon 4 and DR 4-101(B), and that the narrow future-crime and fraud exceptions did not apply.

Q: Can the lawyer destroy notes, photographs, and a diagram of the crime?

A: The committee treated the lawyer's notes, the diagram, and material the client prepared as privileged communications and work product, not fruits or instrumentalities of the crime, so destroying them, if not contrary to the client's wishes, violated no ethical standard.

Q: Was moving the body a problem?

A: The committee did not decide the legality but warned that tampering with physical evidence contrary to N.Y. Penal Law section 215.40 would violate the Code, and that even absent illegality, moving a body could create an appearance of impropriety under Canon 9 and should be avoided.

Q: Could the lawyer raise the other crimes in plea talks?

A: Yes, with the client's express consent. The committee found no impropriety in discussing a plea disposition, including offering to help resolve open cases, where the client consented before any disclosure.

Background and rules framework

The opinion applies Canon 4 on confidences and secrets (EC 4-1, EC 4-5; DR 4-101(B), (C)), the narrow disclosure exceptions of DR 7-102(B)(1), DR 1-102(A)(3) (illegal conduct involving moral turpitude), DR 7-102 and EC 7-27 on evidence, and Canon 9 on the appearance of impropriety, against the backdrop of the attorney-client privilege. The current Model Rule analogues are Rule 1.6 (confidentiality), Rule 3.4 (fairness to opposing party and counsel, including evidence), and Rule 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 3.4 (fairness to opposing party and counsel)
• MR 8.4 (misconduct)
• NY Canon 4, Canon 7, Canon 9; EC 4-1, EC 4-5, EC 7-27; DR 1-102(A)(3), DR 4-101(B), (C), DR 7-102, DR 7-102(B)(1)

Statutes:

• N.Y. Penal Law section 215.40 (tampering with physical evidence), cited by the opinion

Cases:

• People v. Belge, 83 Misc. 2d 186 (1975), aff'd 50 A.D.2d 1088 (4th Dept. 1975), aff'd 41 N.Y.2d 60 (1976)
• In re Ryder, 381 F.2d 713 (4th Cir. 1967); State v. Olwell, 64 Wash. 2d 828 (1964), on fruits and instrumentalities of crime

Other opinions cited:

• N.Y. State 454 (1976): the 1976 amendment limiting the fraud exception to non-privileged information

See also

• NY State Bar Op. 486: Disclosing a client's stated intent to commit suicide
• NY State Bar Op. 530: Turning over physical evidence
• NY State Bar Op. 485: Legal Aid disclosing client confidences to a research group

Source

• Landing page: https://nysba.org/opinion-479/