When federal law forces a lawyer to report a client's $10,000-plus cash fee and the client's identity, how does that square with the duty of client confidentiality?

Plain-English summary

A criminal-defense client paid the attorney a fee over $10,000 in cash. Federal law (26 U.S.C. Section 6050I) requires a person in a trade or business who receives more than $10,000 in cash in one transaction to file a return that includes the payer's name, address, and taxpayer identification number, that is, the client's identity. Rule 16-106(A) provides that a lawyer shall not reveal information relating to the representation of a client unless the client consents. The committee identified a direct conflict: the federal law requires the lawyer to reveal exactly what the confidentiality rule says the lawyer should not. It expressly declined to resolve the conflict and instead gave guidance to New Mexico attorneys who encounter it.

The committee began from the premise that a competent attorney has a duty to know the law. At the moment the attorney knows the client contemplates a reportable cash transaction, and before accepting the cash, the attorney has a duty under Rules 16-101 and 16-102 to advise the client about the apparently conflicting laws. After that advice, the committee identified four scenarios: the client completes the transaction and consents to the report; the client declines to complete the transaction and terminates or withdraws; the client structures the transaction so no duty to report arises; or the client demands the attorney take the cash and comply with the confidentiality rule by not reporting.

For the fourth scenario, the committee concluded New Mexico law permits the attorney to decline the representation (Rule 16-102(E)) or, if a relationship already exists, to withdraw in view of the apparent conflict and threat of prosecution (Rule 16-116(B)(3) or (6)). It also described an optional course that no attorney is ethically obligated to pursue: with the client's consent, the attorney may agree to make a good-faith effort to determine the validity, scope, meaning, or application of the law (Rule 16-102(D)), pointing to Chicago Bar Association Opinion 86-2 as one example (a notice to the IRS that the payer's identity is withheld on a claim of client confidence, putting the government on notice so it can seek judicial relief). Before doing so, the client must be advised of the nature of the effort, including the possibility that the attorney will ultimately be compelled to reveal the client's identity and that both may be prosecuted under the statute.

The opinion reflected the consensus of all committee members on the situation above. It expressly did not address the different situation of an attorney who never discussed Section 6050I with the client until after accepting more than $10,000 in cash and whose client then refuses to consent to any disclosure; on that question the committee was evenly divided.

Currency note

This opinion was issued in 1989, under the New Mexico Rules of Professional Conduct effective January 1, 1987 (SCRA 1986, Rules 16-101, 16-102, 16-106, and 16-116). 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), and it interprets a federal statute that has since been amended. Treat this page as historical context, not current guidance. Verify against current rules and the current text of 26 U.S.C. Section 6050I before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does the confidentiality rule excuse a lawyer from the federal cash-reporting law?

A: The committee did not resolve the conflict between 26 U.S.C. Section 6050I and Rule 16-106(A). It noted the federal statute provides no recognition of client confidence and that its violation is a felony, and gave guidance rather than a resolution.

Q: What must a lawyer do once she knows a reportable cash payment is coming?

A: Before accepting the cash, the lawyer has a duty under Rules 16-101 and 16-102 to advise the client about the apparently conflicting laws, after which the committee identified four possible scenarios for how the matter could proceed.

Q: Can the lawyer refuse the engagement or withdraw if the client insists on paying cash and demands silence?

A: The committee concluded the lawyer may decline the representation under Rule 16-102(E), or withdraw under Rule 16-116(B)(3) or (6) in view of the apparent conflict and threat of prosecution to both lawyer and client.

Q: Is a lawyer required to challenge the reporting requirement?

A: No. The committee described a good-faith challenge under Rule 16-102(D) as an optional course consistent with the highest ideals of the profession, not an obligation, and required the client be advised first of the risks, including compelled disclosure and prosecution.

Background and rules framework

The opinion interpreted New Mexico's confidentiality rule (Rule 16-106(A), corresponding to Model Rule 1.6) against a federal reporting statute, and located the lawyer's options in the competence and scope rules (Rules 16-101 and 16-102, corresponding to Model Rules 1.1 and 1.2) and the withdrawal rule (Rule 16-116, corresponding to Model Rule 1.16). The committee framed the lawyer's first obligation as the advisory duty owed before accepting the cash, then the decline-or-withdraw options, then the optional good-faith effort to test the law under Rule 16-102(D).

Citations and references

Rules of Professional Conduct:

• Rule 16-106(A) (confidentiality); Rule 16-101 (competence); Rule 16-102(D), (E) (scope and good-faith effort to determine the law; declining representation); Rule 16-116(B)(3), (6) (withdrawal)

Statutes:

• 26 U.S.C. Section 6050I (returns relating to cash received in a trade or business)

Other opinions cited:

• Chicago Bar Association Professional Responsibility Committee, Opinion 86-2 (May 11, 1988): notice to the IRS withholding payer identity on a claim of client confidence

Other authorities cited:

• S. Wisotsky, Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L.J. 889 (1987)
• 4 J. Weinstein, Weinstein's Evidence

See also

• NM Ethics Op. 1989-1: Whether a Lawyer Must Report a Non-Client's Criminal Activity Discovered During a Civil Case
• NM Ethics Op. 1988-9: Mandatory Disclosure When the Lawyer Was Made to Mislead a Third Party

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/1989/1989-2.pdf

Original opinion text

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

Advisory Opinion 1989-2
ATTORNEY'S DUTY TO REPORT CASH TRANSACTIONS OVER $10,000 MADE WITH A CLIENT
Attorney's client has been indicted for violation of the controlled substances laws. Client retained attorney to represent
him in this case and paid attorney a fee in excess of $10,000 in cash. Federal law requires attorney to report this
transaction. 26 U.S.C. § 6050I provides that, "(a) Any person - (1) who is engaged in a trade or business, and (2) who, in
the course of such trade or business, receives more than $10,000 in cash in 1 transaction (or 2 or more related
transactions), shall make the return described . . . [below] (b) A return is described in this subsection if such return - . . .
(2) contains (A) the name, address, and TIN of the person from whom the cash was received Thus, the law requires the
return to include the client's identity. Attorney questions whether the report would violate rules regarding client confidence
and fears that disclosure would result in undesirable consequences for attorney and client.
Such dilemma is applicable not only to criminal defense lawyers but also to civil lawyers in a variety of situations.
Compliance with the law in all these situations could lead to undesirable consequences such as: inquiry or prosecution by
taxation authorities; attorney being subpoenaed to give testimony adverse to client regarding client's possession of the
cash; or seizure of the fee paid as proceeds of a criminal transaction.
It is the intent of Congress under 26 U.S.C. § 6050I that an attorney who receives $10,000 or more in cash from a client
must report the receipt and the client's identity to the Internal Revenue Service. This law provides no recognition of client
confidence. Violation of the law is a felony. on the other hand, SCRA 1986, 16-106(A) provides that, "A lawyer shall not
reveal information relating to the representation of a client unless the client consents . . . . It appears the intent of the New
Mexico Rules of Professional Conduct is that attorney should not reveal exactly what the federal law requires attorney to
reveal. Thus, there is a conflict between 16 U.S.C. § 6050I and Rule 16-106(A). Our Committee does not resolve the
conflict, but we give guidance to New Mexico attorneys encountering it.
Our guidance begins with the premise that it is the duty of a competent attorney to be aware of the law. At the moment
the attorney knows that the client contemplates a reportable cash transaction, before accepting the cash, the attorney has
a duty created by SCRA 1986, 16-101 and -102 to advise the client about these apparently conflicting laws. Following
compliance with this advisory duty, there are four possible scenarios:
1. Client will complete the cash transaction and attorney will report with client's consent.
2. Client will decline to complete the transaction and withdraw from or terminate the relationship.
3. Client will complete the transaction in a form which creates no duty to report.
4. Client will demand that attorney accept the cash and comply with the professional conduct rule by not reporting the
transaction.
If the client chooses the fourth scenario, New Mexico law would permit the attorney to decline the representation (SCRA
1986, 16-102(E)); or, if a relationship already exists, to withdraw in view of the apparent conflict and threat of prosecution
for both attorney and client (SCRA 1986, 16-116(B)(3) or (6)).
There is another possibility for an attorney whose client chooses the fourth scenario. while no attorney is ethically
obligated to pursue it, for the reasons stated later in this opinion, we believe pursuit of it would be consistent with the
highest ideals of the profession. Since we have identified a conflict between the New Mexico ethical rules and the federal
law, an attorney may, with the client's consent, agree to "make a good faith effort to determine the validity, scope,
meaning or application" of the law at issue. See SCRA 1986, 16-102(D).
While we do not identify any one precise form of such a challenge, we refer to Chicago Bar Association Professional
Responsibility Committee, Opinion 86-2, May 11, 1988, as a possible choice. The opinion suggests a notice to the IRS on
the required reporting form that the identity of the payer has been withheld because of a claim of client confidence. This
method would put the government on notice of the attorney's "good faith effort" and allow the government to seek judicial
relief testing the claim of ethical obligation.

Prior to accepting the cash and filing such a notice or choosing any other particular "good faith effort," the client must be
advised of the nature of the effort and given the opportunity to reconsider the choice of scenario 4. Such advice should
include the possibility that attorney will ultimately be compelled to reveal the client's identity. Such advice should also
include the warning that attorney and client may be subject to prosecution for violation of 26 U.S.C. § 6050I.
While New Mexico attorneys are not required to make this good faith effort, the Committee notes that one commentator
suggests the very purpose of laws such as 26 U.S.C. § 6050I is to drive a wedge between lawyer and client with the end
result that persons accused of drug offenses will be weakened in their ability to defend themselves. S. Wisotsky,
Crackdown: The Emerging "Drug Exception" to the Bill of Rights, 38 Hastings L. J. 889 at 900-904 (1987). The
Committee further notes that, throughout the former Code of Professional Responsibility and the current Rules of
Professional Conduct, there are provisions requiring a lawyer to be mindful of his obligations to provide legal assistance to
those who need it. Former Canon 2 and EC 2-1; SCRA 1986, 16-6-1, -602. Thus, the Committee is of the opinion that an
attorney who chooses not to decline the representation and who rather chooses to represent the client while challenging
the law would uphold the highest ideals and traditions of our profession.
The above discussion reflects the consensus of all members of the Advisory Opinions Committee. This opinion does not
address the dilemma facing an attorney who did not discuss 26 U.S.C. Section 6050I with the client until after accepting
more than $10,000 in cash and whose client then refuses to consent to any type of disclosure. As to this question, the
Committee was divided. A number of Committee members felt that an attorney in this situation was prohibited by client
confidence rules from filing any sort of informational return lest the client's identity be ultimately required to be disclosed.
A like number of Committee members were of the opinion that an informational return omitting the client's identity was
required as a compromise between client confidence rules and the attorney's duty to abstain from criminal acts reflecting
adversely on the attorney's fitness as a lawyer.