Must a lawyer disclose a client's identity to government investigators when the client only sought advice about possibly unlawful conduct?

Plain-English summary

A Treasury Department office described a client who had asked his attorney about Customs regulations on seized and forfeited articles and about whether the statute of limitations applied to imported articles subject to seizure. The client had bought a piece of jewelry cheaply, and after the seller was found by Customs officers carrying other smuggled jewelry, the buyer suspected his purchase had also been smuggled. The attorney's associate consulted the Treasury office about the Customs laws, and the office reported to the Collector of Customs and then to a Supervising Customs Agent. When that agent later sought the client's identity and the time of purchase from the attorney to complete his investigation, the attorney refused, asserting that disclosure would violate the client's confidence and that the interview was a privileged communication. The question was whether the attorney could divulge the client's name without violating the attorney-client confidence, and whether the interview was a privileged communication.

The Board answered that, from the facts, it could not be assumed the client had disclosed an "announced intention ... to commit a crime" within Rule 39. For all that appeared, the client, though he had cause to believe his purchase had been smuggled, was seeking information about his duties to his government and his legal rights under the existing facts, a situation entirely at variance with an intention to commit a future crime communicated to the lawyer. The Board concluded that the lawyer was performing his professional duty to his client when he refused to disclose the client's name to the Customs representative.

Currency note

This opinion was issued in 1937, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The duty of confidentiality and its crime-related exceptions persist in modern rules, though the rule text and numbering have changed. Subsequent rule amendments and 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 Treat this page as historical context, not current guidance.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: Did the lawyer have to give the Customs agent his client's name?

A: No. The Board held the lawyer was performing his professional duty in refusing, because the facts did not show the client had announced an intention to commit a crime.

Q: Why did Rule 39's crime exception not apply?

A: Because, on the facts, the client appeared to be seeking advice about past conduct and his rights and duties, not announcing an intention to commit a future crime, which is what Rule 39 addresses.

Background and rules framework

The opinion applied Rule 39 of the canon-era Oklahoma Rules of Professional Conduct, which addresses a client's announced intention to commit a crime as a limit on confidentiality, and found it inapplicable on the facts. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 39 (1929 Oklahoma Rules of Professional Conduct): addresses the disclosure of a client's announced intention to commit a crime; held inapplicable where the client sought advice about past conduct.

See also

• Okla. Bar Ethics Op. 109: Disclosing the whereabouts of a fugitive client
• Okla. Bar Ethics Op. 110: A scheme to betray a client to recover stolen goods

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-136/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted September 17, 1937

The Board is in receipt of the following inquiry from an office of the Treasury Department:

"A client called at the office of his attorney and asked for information relative to existing Customs Regulations pertaining to seized and forfeited articles, and as to whether or not the statutes of limitations operated with respect to imported articles subject to seizure. The client claiming that at some time in the past he had purchased from an individual, for which seemed to be a very nominal price, a piece of jewelry. Subsequent happenings (the seller of the article of jewelry being accosted by customs officers who found other articles of jewelry on his person which had been smuggled into the United States) caused the buyer (the client) to suspect that the article he had purchased was also smuggled into the United States.

The attorney had his associate call at this office in connection with Customs Regulations and laws relating to smuggled articles and articles subject to forfeiture for illegal entry. A report was made by this office to The Collector of Customs who in turn forwarded the report to the Supervising Customs Agent, Chicago, Illinois, for such action he deemed appropriate and advisable.

The Supervising Customs Agent, being unable to find the attorney mentioned above in the city during any of his visits to this city, requested this office to secure such other information from the attorney relative to the identity of the client and the possible time of the purchase of the article of jewelry and other information which would enable that officer to complete his investigation. A few days ago the writer called on the attorney in accordance with the request of the Supervising Customs Agent and was refused any further and additional information by the attorney; the reason being given that it would violate the client's confidence with his attorney and that the interview was considered a privileged communication.

In connection with the foregoing the question is: Could the attorney divulge the name of his client, the information so given to be used by the Supervising Customs Agent, without violating the confidence of attorney and client; and is the interview between the client and attorney, as given in the foregoing, privileged communication?"

In response:

From the statement of facts it cannot be assumed that, at the conference detailed, the client of the member of the bar disclosed to him an "announced intention … to commit a crime" (Rule 39, Rules of Professional Conduct). For aught that appears, the client, even though he had cause to believe that the article which he had purchased had been smuggled, was seeking information as to what, under the circumstances, his duties to his government were, and as to what his legal rights were under the existing facts. Thus may be presented a situation entirely at variance with the supposition that the client intended, in the future, to commit a crime and that he informed the member of the bar of his intention to do so.

In the opinion of the Board the member of the bar in question was in the performance of his professional duty to his client when he refused to disclose his name to the customers' representative.