Must a legal services lawyer who reviewed a prospective client's file, but never appeared in the matter, report to the tribunal or to police that the person gave a false name and address and may have failed to register as a sex offender?

Plain-English summary

A person sought representation from a legal services agency on an administrative matter and authorized the agency to review the administrative record. The inquiring attorney reviewed it, then learned the person used a second name, had a prior rape conviction, and was a level-three sex offender whose registered address differed from the address on his application, suggesting a possible failure-to-register felony. The agency declined to represent him and never filed an appearance. The lawyer asked whether he was obligated to report the discrepancies to the tribunal, or the apparent crime to police or the registry.

The committee first establishes that the lawyer owes a duty of confidentiality regardless of how the relationship is characterized. If a client relationship formed, the person is now a former client owed confidentiality under Rule 1.9(c) and Rule 1.6(a). If it did not, he was at least a "prospective client" under Rule 1.18(a), and Rule 1.18(b) extends Rule 1.9-equivalent protection to information learned in the consultation. The information learned here fits Rule 1.6(a)'s definition of confidential information.

The committee narrows the question to mandatory disclosure only, declining to opine on whether disclosure would be permitted. On the tribunal, none of Rule 3.3's mandatory-disclosure triggers apply: Rule 3.3(a)(1) reaches false statements made "by the lawyer," not by the client; Rule 3.3(a)(3) reaches evidence the lawyer "offered or used," and this lawyer never appeared, so he offered nothing; and Rule 3.3(b) applies only to a lawyer who "represents a client before [the] tribunal," which this lawyer never did.

On reporting the apparent crime, Rule 1.6(b)(2) permits disclosure only to prevent a future or continuing crime, not a completed past one (citing N.Y. State 866 (2011)), and whether a failure-to-register violation is "continuing" is a legal question the committee will not decide. In any event Rule 1.6(b)(2) is permissive, so it imposes no duty. The conclusion: the attorney has no mandatory disclosure obligations.

In practice

The opinion holds that, under the New York rules as they stood in 2013, a lawyer who reviewed a prospective or former client's file but never entered an appearance carries no mandatory duty under Rule 3.3 to correct the person's false statements to the tribunal, and no duty under Rule 1.6 to report the person's apparent failure-to-register crime. The committee is explicit that it analyzed only mandatory disclosure and did not reach whether such disclosures would be permitted. The confidentiality owed to a prospective client under Rule 1.18 mirrors that owed to a former client.

Common questions

Q: Does a lawyer have to correct a client's false statement to a tribunal under Rule 3.3?

A: Not on these facts. Per paragraphs 17 to 21, Rule 3.3(a)(1) reaches only false statements made by the lawyer, and Rule 3.3(a)(3) reaches only evidence the lawyer offered or used; a lawyer who never appeared has done neither.

Q: Does the duty to take remedial measures under Rule 3.3(b) apply if I never filed an appearance?

A: No. Paragraph 22 reads Rule 3.3(b) to apply only to a lawyer who "represents a client before [the] tribunal." Because the agency declined the matter and never appeared, the rule does not apply.

Q: Can a lawyer be required to report a client's apparent crime, like failing to register as a sex offender?

A: No. Under paragraphs 23 to 25, Rule 1.6(b)(2) only permits disclosure to prevent a future or continuing crime and never requires disclosure, and whether the violation is "continuing" is a legal question the committee does not decide.

Q: Do confidentiality duties apply to someone who only consulted the lawyer and never became a client?

A: Yes. Paragraph 13 explains that under Rule 1.18(b) a lawyer must not use or reveal information learned from a prospective client, to the same extent Rule 1.9 protects a former client.

Background and rules framework

The opinion interprets the confidentiality rules, Rule 1.6 (Model Rule 1.6) and Rule 1.9(c) (Model Rule 1.9) for former clients, plus Rule 1.18 (Model Rule 1.18) for prospective clients, against the candor-to-the-tribunal rule, Rule 3.3 (Model Rule 3.3). The analysis turns on the textual triggers of Rule 3.3(a) and (b) and on the permissive ("may reveal") structure of Rule 1.6(b)(2), which the committee distinguishes from a mandatory duty.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NY Rule 1.6(a), (b)(2) (confidentiality; permissive disclosure to prevent a crime)
• MR 1.9 / NY Rule 1.9(c) (confidentiality to former clients)
• MR 1.18 / NY Rule 1.18 (duties to prospective clients)
• MR 3.3 / NY Rule 3.3(a), (b) (candor toward the tribunal; remedial measures)

Cases:

• Willette v. Fischer, 508 F.3d 117 (2d Cir. 2007), cited on whether a change-of-address violation is a continuing offense.

Other opinions cited:

• N.Y. State 866 (2011): Rule 1.6(b)(2) reaches only future or continuing crimes, not completed past crimes.

See also

• NY State Bar Op. 982: Disclosing potential fraud on a tribunal
• NY State Bar Op. 1123: False statement of net worth and remedial measures
• NY State Bar Op. 1126: Confidentiality owed to a prospective client
• NY State Bar Op. 1067: Duties to a prospective client adverse to an existing client

Source

• Landing page: https://nysba.org/ethics-opinion-963/