If someone confesses a crime while trying in good faith to hire a lawyer who already represents an adverse client, what must the lawyer do?

Plain-English summary

A lawyer was consulted by a client about a theft. Afterward, an employee of that client, seeking in good faith to retain the lawyer, confessed that he was the one who had committed the theft. The lawyer asked whether he could continue to represent the existing client on the theft or instead represent the employee. The committee explained that information disclosed to a lawyer whose disclosure would likely be detrimental to a client is a "secret" under DR 4-101(A), which a lawyer may not reveal, use to the client's disadvantage, or use to a third person's advantage without consent. It held this is equally true when the secret is imparted in good faith by a prospective client trying to retain the lawyer, and that the lawyer's declining the retainer or charging no fee is irrelevant (citing N.Y. County 243 (1926) and Drinker).

From that premise, the committee reasoned that the lawyer could not tell the first client about the employee's confession or use it against the employee without the employee's consent. The lawyer also had to decline the employee's retainer, because even with consent to disclosure and to dual representation it was far from obvious that the lawyer could adequately represent each interest (DR 5-105(C)).

Most significantly, the committee found that, through no fault of his own or the first client's, the lawyer had been inadvertently placed in a position where he could not discharge his duty to the first client without revealing or using the employee's secret. He therefore had no choice but to withdraw from representing the first client on the theft (DR 2-110(B)(2); DR 5-105(A) and (B)). The committee added that it was mindful of the potential for abuse, an adverse party compelling withdrawal simply by revealing secrets, and expressly limited the opinion to the situation where the prospective client reveals confidences in a good-faith effort to retain the lawyer and without knowledge that the lawyer already represents an adverse party. The question was answered in the negative.

Currency note

This opinion was issued in 1980, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (duties to prospective clients are now addressed by Rule 1.18, confidentiality by Rule 1.6, concurrent conflicts by Rule 1.7, 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: Are a would-be client's disclosures protected even if the lawyer is never hired?

A: Yes. The committee held a secret imparted in good faith by a prospective client seeking to retain the lawyer is protected, and the fact that the lawyer charges nothing or declines the retainer is irrelevant.

Q: Can the lawyer keep representing the original client after hearing the confession?

A: No. The committee held the lawyer must withdraw from the original representation on that matter, because he cannot discharge his duty to that client without revealing or using the prospective client's secret.

Q: Could everyone just consent to let the lawyer represent both?

A: The committee found that even with consent it was far from obvious the lawyer could adequately represent each interest, so he had to decline the employee's retainer under DR 5-105(C).

Q: Could an adverse party abuse this to force a lawyer off a case?

A: The committee flagged that risk and limited its opinion to good-faith disclosures made without knowledge that the lawyer already represented an adverse party.

Background and rules framework

The opinion applied DR 4-101 (confidences and secrets), DR 5-105(A)-(C) (declining or continuing employment that creates a conflict), and DR 2-110(B)(2) (mandatory withdrawal), to a lawyer who received a prospective client's confession adverse to an existing client. The closest current Model Rule analogues are Rule 1.18 (duties to prospective clients), Rule 1.6 (confidentiality), Rule 1.7 (concurrent conflicts), and Rule 1.16 (withdrawal).

Citations and references

Rules of Professional Conduct:

• MR 1.18 (duties to prospective clients)
• MR 1.6 (confidentiality)
• MR 1.7 (concurrent conflicts of interest)
• MR 1.16 (withdrawal)
• NY DR 2-110(B)(2), DR 4-101(A)-(C), DR 5-105(A)-(C)

Other opinions cited:

• N.Y. County 243 (1926), 241 (1926): protection of a prospective client's disclosures
• N.Y. City 109 (1928-29), 88 (1928-29), 225 (1932): confidences and resulting conflicts

See also

• NY State Bar Op. 528: Client whereabouts and the duty to preserve confidences
• NY State Bar Op. 533: Public defender's office conflict on an ineffective-assistance appeal

Source

• Landing page: https://nysba.org/opinion-525/