What can a New York lawyer do when a client says he intends to commit a future crime?

Plain-English summary

The committee was asked for general guidelines for a lawyer whose client has shown an intent to commit a crime. It began from the principle that a lawyer's obligations to a client are bounded by the law: a lawyer may never assist conduct the lawyer knows to be illegal (DR 7-102(A)(7)), and may not encourage or aid a client to commit criminal acts or counsel how to violate the law (EC 7-5). The committee drew on N.Y. State 455 (1976) for the line that what is proscribed is encouraging illegal conduct, not giving advice about what conduct is illegal or discussing its consequences.

Where a client wants affirmative help in committing a future crime, the committee said the lawyer must not knowingly further the criminal purpose and should make all reasonable efforts to persuade the client to abandon it, including warning of the serious consequences. If those efforts appear fruitless, the lawyer would have grounds to withdraw under DR 2-110(C)(1)(b), and would be required to withdraw if continued employment would result in a violation of a Disciplinary Rule (DR 2-110(B)(2)).

On disclosure, the committee laid out the confidentiality framework of DR 4-101(A) and (B) and the breadth of the duty (EC 4-4; N.Y. State 528), then turned to the exception in DR 4-101(C)(3), which permits a lawyer to reveal a client's intention to commit a crime and the information necessary to prevent it. The committee read the exception as conferring professional discretion: the Code neither mandates nor forbids disclosure, and a decision either way is within the lawyer's individual judgment and conscience and will not by itself subject the lawyer to discipline. Before disclosing, the lawyer should where practicable try to discuss the matter with the client and, where the criminal purpose seems to stem from addiction or a compulsive emotional problem, encourage the client to seek help. Any disclosure should be no greater than the lawyer believes necessary to prevent the crime. The committee listed factors bearing on the decision: the seriousness of the potential injury (especially death or grave bodily injury), its likelihood and imminence, the absence of another feasible way to prevent it, and circumstances such as whether the client tried to involve the lawyer in the crime. A four-member concurring opinion agreed with the guidelines but wrote separately to stress the profession's duties to society, citing Judiciary Law section 90(2) and cases imposing tort warning duties on others in confidential relationships, and urging that a lawyer should not lightly decline to disclose an intended serious crime merely because the Code makes disclosure optional.

Currency note

This opinion was issued in 1984, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality and its exceptions now appear at Rule 1.6, withdrawal at Rule 1.16, and the bar on assisting a client's crime or fraud at Rule 1.2(d)). New York's confidentiality and crime-fraud disclosure rules have been revised since this opinion. 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 disclose that a client intends to commit a crime?

A: No. The committee read DR 4-101(C)(3) as discretionary; disclosure to prevent the crime is permitted but neither required nor forbidden, and either choice is within the lawyer's judgment.

Q: Can the lawyer help carry out the planned conduct?

A: No. The committee held the lawyer may never knowingly further the client's criminal purpose, and may not encourage or aid the client to commit criminal acts.

Q: Does a client's stated intent to commit a future crime let the lawyer withdraw?

A: Yes. The committee said the lawyer may withdraw under DR 2-110(C)(1)(b) where efforts to dissuade fail, and must withdraw if continuing would violate a Disciplinary Rule.

Q: How much may the lawyer disclose if he decides to act?

A: The committee said disclosure should be limited to what the lawyer believes necessary to prevent the crime.

Background and rules framework

The opinion read DR 4-101 (preservation of confidences and secrets), including the disclosure exception in DR 4-101(C)(3), together with DR 2-110 (withdrawal), DR 7-102(A)(7) (assisting illegal conduct), and DR 1-102(A)(3) and (4). The closest current Model Rule analogues are Rule 1.6 (confidentiality of information, including its crime-prevention exceptions), Rule 1.16 (declining or terminating representation), and Rule 1.2(d) (bar on assisting a client's crime or fraud).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.16 (declining or terminating representation)
• MR 1.2(d) (scope of representation; assisting crime or fraud)
• NY DR 4-101; DR 2-110; DR 7-102(A)(7); DR 1-102(A)(3), (4)

Statutes:

• Judiciary Law section 90(2) (court power to discipline conduct prejudicial to the administration of justice; cited in the concurrence)

Cases:

• Tarasoff v. Regents, 17 Cal. 3d 425 (1976), warning duty of a confidential professional (cited in the concurrence)
• Hawkins v. King County, 602 P.2d 361 (Wash. Ct. App. 1979), tort warning duty (cited in the concurrence)
• People v. Belge, 83 Misc. 2d 186 (Onondaga County Ct. 1975), aff'd, on confidentiality and concealment

Other opinions cited:

• N.Y. State 455 (1976): advising on legality versus encouraging illegal conduct
• N.Y. State 479 (1978): confidentiality of information about past crimes
• ABA 84-349 (1984): withdrawal of older ABA opinions on disclosure

See also

• NY State Bar Op. 742: Confidentiality and a lawyer's duty when a client acts illegally
• NY State Bar Op. 982: Disclosing a potential fraud on a tribunal
• NY State Bar Op. 645: A town board disclosure law versus client confidences

Source

• Landing page: https://nysba.org/opinion-562/