Can a lawyer reveal to prosecutors that his client witnessed a crime, when the client refuses to come forward?

Plain-English summary

Attorney A's client C confided that he was an eyewitness to a killing but, fearing reprisal against his family, had not reported it. A advised C it was his civic duty to tell the district attorney, and C refused. A later learned the accused had been indicted for murder, that the prosecution had little hope of conviction without direct evidence, and that C's testimony would likely produce a conviction; A was also convinced C had committed no act making him a principal or accessory. The inquiry asked whether A violates the Canons by failing to reveal C's knowledge, and if not, whether A violates the Canons by revealing it. The Committee answered both (8-0).

The Committee concluded that A does not violate any Canon by failing to reveal C's knowledge to the district attorney, and that if A reveals it without C's permission, A violates Canon 34. C, having consulted A as his attorney, is entitled to have his confidences and secrets preserved so long as they do not relate to C's commission of future crimes. The Committee assumed from the facts that C's silence does not violate any criminal statute, such as Articles 77, 428, or 176 of the Penal Code, and held that the loyalty an attorney owes his client generally controls over duties under other canons in the event of conflict, citing ABA Opinion 287 and Article 713 of the Code of Criminal Procedure. Absent C's permission to disclose, the Committee said A can go no further than to advise C to report the facts to the district attorney.

Currency note

This opinion was issued in 1959, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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: Can a lawyer report that his client witnessed a crime when the client refuses to?

A: The Committee held that the lawyer may not reveal the client's knowledge without the client's permission; doing so would violate Canon 34.

Q: Does the lawyer violate any Canon by staying silent?

A: No. The Committee concluded the lawyer does not violate any Canon by declining to reveal the client's knowledge to the district attorney, where the client's silence breaks no criminal statute.

Q: What can the lawyer do?

A: The Committee said that, absent the client's permission to disclose, the lawyer can go no further than to advise the client to report the facts to the district attorney.

Q: How does this differ from a client planning a future crime?

A: This opinion concerns a client's confidence about a past crime he witnessed; the Committee said the duty of confidence holds so long as it does not relate to the client's commission of future crimes.

Background and rules framework

The opinion interprets former Texas Canon 34 (preserving a client's confidences and secrets), together with Article 713 of the Code of Criminal Procedure. The modern analog is ABA Model Rule 1.6 (confidentiality of information).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information), as the modern analog
• Texas Canon 34 (former canon on client confidences and secrets)

Statutes:

• Articles 77, 428, and 176, Texas Penal Code (as cited, on a witness's silence)
• Article 713, Texas Code of Criminal Procedure (as cited)

Other opinions cited:

• ABA Opinion 287

See also

• TX Ethics Op. 204: A Client's Announced Intent to Commit a Crime
• TX Ethics Op. 203: Releasing a Drafted Contract Without Consent

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-193/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_193.pdf

Original opinion text

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

QUESTION PRESENTED

Attorney A represents client C. C tells A that he (C) is an eyewitness to a killing but, for fear of reprisal against his family, has failed to report his evidence to the law enforcement authorities. A tells C that it is his civic duty to aid in the administration of justice by telling his story to the district attorney. C rejects this advice. Subsequently A learns that the accused has been indicted for murder but that the district attorney's office has little hope for a conviction because of the complete absence of any direct evidence to support the indictment. A is convinced that C's testimony would produce a conviction because his statements and the circumstantial evidence corroborate the other perfectly and leave little room for doubt as to the guilt of the accused. A is also convinced that C has not committed any act which would make him a principal or an accessory to the crime.
Does A violate any of the Canons of Ethics by failing to reveal C's knowledge of this crime to the district attorney?
If the answer to (1) is "No," does A violate any of the Canons of Ethics by revealing C's knowledge of this crime to the district attorney?

18 Baylor L. Rev. 285 (1966)

CONFIDENCES OF A CLIENT - CLIENT WITHHOLDING EVIDENCE OF CRIME
An attorney in receipt of information from a client that the client was an eyewitness to a crime may properly decline to reveal such knowledge to prosecuting officials if the client does not desire such notification and if the client's silence does not violate a criminal statute. Under such circumstances the attorney improperly breaches his client's confidence if he reveals his client's knowledge of the crime to prosecuting officials without his client's permission.

CONFIDENCES OF A CLIENT
The loyalty owed by the attorney to his client generally controls over any duties under other canons, in the event of conflict.

Canon 34.

It is the opinion of the committee that this inquiry should be answered as follows:
A does not violate any of the Canons of Ethics by failing to reveal C's knowledge of this crime to the district attorney.
If A reveals C's knowledge of this crime to the district attorney without C's permission, A will be violating Canon 34.
C, having consulted A in his capacity as C's attorney, is entitled to have his confidence and secrets preserved so long as they do not relate to the commission of future crimes by C. It is assumed from the facts presented, that C's silence does not violate any criminal statutes such as Art. 77, P.C., Art. 428, P.C., or Art. 176, P.C. The Committee feels that the loyalty owed by the attorney to his client generally controls over any duties under other canons, in the event of conflict. (See ABA Opinion No. 287 and Art. 713, C.C.P.) In the absence of permission from C to reveal these facts to the district attorney, the Committee feels that A, under such circumstances, can go no further than to advise C to report these facts to the district attorney. (8-0.)

Tex. Comm. On Professional Ethics, Op. 193 (1959)