Do the ethics rules require a lawyer to report serious crimes she discovers an opposing party committed while pursuing a civil claim, especially after a confidential settlement?

Plain-English summary

While pursuing a civil claim for a client, the attorney discovered information leading her to believe the defendant's actions constituted serious felony crimes as well as civil wrongs. The client's claim was settled with some confidentiality provisions (which the committee did not review), but the lawyers orally agreed after the fact that the agreement did not prohibit the claimant's attorney from reporting the defendant to law enforcement. The attorney asked whether the Rules of Professional Conduct required her to report the criminal conduct.

The committee limited the opinion to criminal acts by persons who are neither the reporting attorney's client nor attorneys (a lawyer's duty as to wrongdoing by clients or other attorneys being addressed in Rules 16-106(B) and (C) and 16-803). It followed ABA Informal Opinion 1210 (1972), which recognized a lawyer must comply with laws on compounding a felony or being an accessory after the fact, and a lawyer's duty as a good citizen to aid enforcement of the criminal laws. The committee concluded that, except for concerns about compounding a crime or being an accessory, a lawyer's duty to report observed or suspected criminal activity is no different from that of any other citizen; one does not assume a higher standard by becoming a lawyer or by observing criminal activity in the course of practice.

Because New Mexico has a compounding-a-crime statute (Section 30-22-6), the committee urged caution in executing settlement agreements requiring confidentiality where an attorney reasonably believes an opposing party's actions constituted a crime, and advised taking care to avoid any appearance that the confidentiality provisions are intended to conceal possible criminal conduct. The committee did not suggest confidentiality provisions are forbidden; it stated that a report to law enforcement is required by the Rules only when an attorney who is a party to such an agreement suspects a crime and an outside observer might believe the settlement's terms require silence about the criminal activity.

Currency note

This opinion was issued in 1989, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (Rules 16-106 and 16-803). It predates the State Bar of New Mexico's November 3, 2008 revisions to those Rules (the New Mexico adoption of the ABA Ethics 2000 changes). 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 report serious crimes she learns an opposing party committed?

A: The opinion concluded a lawyer's duty to report a non-client, non-lawyer's crimes is no greater than an ordinary citizen's, except for compliance with the laws on compounding a felony and being an accessory after the fact.

Q: Does becoming a lawyer raise the duty to report observed crime?

A: No. The committee concluded one does not become obligated to a different or higher standard by qualifying to practice law or by observing criminal activity in the course of practice.

Q: Can a confidential settlement cover up an opposing party's suspected crime?

A: The committee cautioned against any appearance that confidentiality provisions are intended to conceal criminal conduct, and concluded a report is required where the lawyer suspects a crime and an outside observer might read the settlement as requiring silence about it.

Q: Are confidentiality clauses in settlements forbidden?

A: No. The committee made clear it did not imply such clauses are forbidden; the concern arises only when they could be read as requiring silence about suspected criminal activity.

Background and rules framework

The opinion read the Rules of Professional Conduct (Rules 16-106 and 16-803, governing a lawyer's duties as to client and attorney wrongdoing) as not extending a special duty to report a non-client, non-lawyer's crimes, and located the limit in New Mexico's compounding-a-crime statute (Section 30-22-6). These concerns correspond to current Model Rules 1.6 (confidentiality) and 8.4 (misconduct).

Citations and references

Rules of Professional Conduct:

• Rule 16-106(B), (C) (confidentiality and client-crime exceptions); Rule 16-803 (reporting another lawyer's misconduct)

Statutes:

• NMSA Section 30-22-6 (compounding a crime)

Other opinions cited:

• ABA Informal Opinion 1210 (1972): a lawyer's duty regarding others' crimes, compounding, and accessory liability

See also

• NM Ethics Op. 1988-9: Mandatory Disclosure When the Lawyer Was Made to Mislead a Third Party
• NM Ethics Op. 1988-8: Reporting Another Lawyer's Misconduct

Source

• Landing page: https://www.sbnm.org/Leadership/Committees/Ethics-Advisory-Committee/Ethics-Advisory-Opinions
• Original PDF: https://www.sbnm.org/Portals/NMBAR/AboutUs/committees/Ethics/1989/1989-1.pdf

Original opinion text

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

Advisory Opinion 1989-1
ATTORNEY'S DUTY TO REPORT KNOWLEDGE OF CRIMINAL ACTIVITY
In the course of pursuing a civil claim on behalf of a client, attorney discovers information leading her to believe that the actions of the defendant have constituted serious felony crimes as well as civil wrongs. A settlement of the client's claim has occurred which contains some confidentiality provisions (we have not reviewed this agreement), but attorneys orally agree after the fact that the agreement does not prohibit, claimant's attorney from reporting the defendant to relevant law enforcement authority.
Attorney's question is: Do the Rules of Professional Conduct applicable to New Mexico attorneys require her to make a report of the criminal conduct?
This opinion is limited in scope to criminal acts by persons who are not the reporting attorney's client, and not attorneys. A lawyer's duty regarding wrongdoing by clients or other attorneys is set out at 16-106 B and C and 16-803 NMSA.
A similar matter was considered by the American Bar Association Committee on Ethics and Professional Responsibility in Informal opinion 1210 (1972). The Committee said:
"...manifestly a lawyer must by virtue of DR 1-102 comply with any laws relating to compounding of a felony or accessory after the fact. Apart from these considerations, there is a duty on the part of a lawyer as a good citizen to aid in the enforcement of criminal laws validly enacted for the collective protection of society..."
Except for concern about compounding a crime or being an accessory to a crime, a lawyer's duty to report observed or suspected criminal activity is no different from that of any other citizen. One does not become obligated to a different or higher standard of conduct by virtue of qualifying to practice law, or observing criminal activity within the course of practice.
New Mexico does have a law regarding compounding a crime, 30-22-6 NMSA. Because of this, we urge caution in the execution of settlement agreements requiring confidentiality where an attorney representing a party reasonably believes that actions of an opposing party in the controversy have constituted a crime.
In entering an agreement which contains provisions for confidentiality, an attorney should take care to avoid any appearance that the confidentiality provisions are intended to conceal possible criminal conduct.
We do not imply that settlement agreements employing confidentiality provisions are forbidden. It is only when an attorney who is a party to such an agreement suspects that a crime has been committed, and an agreement suspects that a crime has been committed, and an outside observer might believe the terms of the settlement agreement require silence about the criminal activity that we believe a report to law enforcement to be required by the Rules of Professional conduct.