Can a New York lawyer give a bank or law enforcement the emails and documents from a 'client' who turned out to be running a counterfeit-check scam?

Plain-English summary

The inquiring lawyer was contacted by a purported Japanese investor who wanted to buy a coop apartment. After emails about fees and a $300,000 check sent through a third party, the lawyer confirmed with the drawee bank that the check was counterfeit and concluded the whole approach was a counterfeit-check scam of the kind the FBI has warned targets law firms (paragraphs 1 through 9). The bank asked for the check, the cover letter, the envelope, and the emails. The lawyer asked whether handing those over would breach any duty of confidentiality.

The opinion frames confidentiality as protecting both actual clients (Rule 1.6(a)) and prospective clients (Rule 1.18). Whether an attorney-client relationship exists is a question of substantive law the committee will not decide, so it relied on the lawyer's own reasonable factual conclusion (paragraphs 17 through 19, 24). The committee held that if a person's aim from the start was to perpetrate a fraud rather than to obtain legal advice, no representation arises and no Rule 1.6 duty attaches, citing California, South Carolina, and Virginia authorities reaching the same result (paragraphs 20 through 23).

The committee extended the same logic to Rule 1.18: a person who only pretends to discuss forming a client-lawyer relationship, while actually trying to defraud the lawyer, never becomes even a prospective client and so is not entitled to the confidentiality those rules provide (paragraph 25). On these facts the lawyer could give the bank and investigators the check, the correspondence, and the emails.

The opinion attaches two caveats. First, the presumption runs the other way: a person who appears to seek a client-lawyer relationship is presumptively a prospective client, and the lawyer must use diligence and great care before concluding otherwise (paragraph 26). Second, if a person was genuinely seeking legal services at the outset and only later also tried to defraud the lawyer, the confidentiality protections may still apply, and the lawyer would have to look to the exceptions in Rule 1.6(b) to justify any disclosure (paragraph 27).

In practice

Under this opinion, where a lawyer reasonably concludes that a purported client's sole purpose was to defraud the lawyer rather than to obtain legal services, disclosure of the related communications and documents to affected banks and to investigators does not violate the confidentiality owed to genuine clients or prospective clients. The committee makes that conclusion turn on the lawyer's reasonable factual determination about the purported client's intent, and it cautions that the presumption of confidentiality gives way only once the lawyer reasonably concludes the inquiry was bogus.

Common questions

Q: A scammer posing as a client sent me a counterfeit check. Can I give the bank the emails and the check?

A: Yes, under this opinion, once you reasonably conclude the person was trying to defraud you rather than obtain legal services. The committee held that such a person is neither a client nor a prospective client, so the confidentiality rules do not bar disclosure to affected banks or law enforcement (paragraphs 25, 28).

Q: Does it matter that we never signed a retainer?

A: The absence of a written retainer does not by itself decide whether a relationship formed; ordinarily the emails and the parties' reasonable expectations would matter. Here the committee said the purported investor's fraudulent intent could override the other factors, because someone only pretending to seek legal services never becomes a client or prospective client (paragraphs 19, 25).

Q: What if I am not sure the person was a scammer?

A: The opinion treats a person who appears to seek a client-lawyer relationship as presumptively a prospective client entitled to Rule 1.18 protection. It tells lawyers to exercise diligence and great care before concluding an inquiry is bogus; the presumption gives way only when the lawyer reasonably concludes the person was not actually seeking legal services (paragraph 26).

Q: What if the person really wanted legal help at first but also tried to defraud me?

A: Then the confidentiality protections of an actual or prospective client may still apply, and the committee says the lawyer would have to analyze the exceptions to confidentiality, such as Rule 1.6(b)(2), to see whether reporting is permitted (paragraph 27).

Background and rules framework

The opinion applies New York Rule 1.6(a) (confidentiality of client information), Rule 1.18(a) and (b) (duties to prospective clients), and Rule 1.9(c) (confidentiality owed to former clients, incorporated by reference through Rule 1.18(b)). These correspond to ABA Model Rules 1.6, 1.18, and 1.9. The analysis turns on a threshold question outside the rules: whether an attorney-client (or prospective-client) relationship ever existed, which the committee treats as a matter of substantive law informed by the lawyer's reasonable factual conclusions.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NY Rule 1.6(a): confidentiality of information
• MR 1.18 / NY Rule 1.18(a), (b): duties to prospective clients
• MR 1.9 / NY Rule 1.9(c): confidentiality owed to former clients

Cases:

• Clark v. United States, 289 U.S. 1 (1933), crime-fraud exception to privilege
• Bradford & Bradford, P.A. v. Attorneys Liability Protection Society, Inc., 2010 WL 4225907 (D.S.C. 2010), no attorney-client relationship where contact was solely to perpetrate a fraud

Other opinions cited:

• The committee's prospective-client analysis draws on State Bar of California COPRAC Ethics Hotliner (Jan. 2011) and Virginia State Bar ethics counsel guidance (Mar. 2011) on attorney-targeted internet scams

See also

• NY State Bar Ethics Op. 945: Disclosing That a Client Read the Opposing Party's Emails
• No additional sibling opinions yet indexed.

Source

• Landing page: https://nysba.org/ethics-opinion-923/