Can a lawyer testify about what a client told him in confidence when the client was planning, and then committed, a crime?

Plain-English summary

A widow brought her deceased husband's unsigned will to an attorney, wanting to probate it because it named her independent executrix; she admitted the testator never signed it but said she could get two witnesses to swear that he had. The attorney told her she could not do that and that such witnesses would be committing a crime, charged for the interview, and heard nothing further. He later learned from the testator's daughter that the widow had in fact probated the will on the affidavits of two witnesses, and, convinced a fraud was being perpetrated on the children, asked whether he may testify to the facts the widow disclosed and whether he should volunteer them. The Committee answered that he may testify but is not compelled to (5-1).

On the first question, the Committee concluded the attorney can testify to the facts learned at the earlier interview, even though that discloses a client's confidences and secrets. The policy behind Article 713, Code of Criminal Procedure, and Canons 6 and 34, providing an atmosphere of security conducive to full disclosure, does not extend to a client who seeks legal advice as to a prospective crime; Canon 34 expressly excludes the announced intention to commit a crime from protected confidences and lets the attorney make disclosures necessary to prevent the act or protect those threatened. The Committee added that reading Canon 34 to permit disclosure only on an express announcement of intent to use perjured testimony would not accord with the spirit of the Canon. On the second question, the Committee found that while nothing prevents the attorney from testifying, nothing in the Canons compels him to; that is a question of personal rather than legal ethics, though good citizenship would seem to call for disclosure.

Currency note

This opinion was issued in 1960, 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 Treat this page as historical context, not current guidance.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 reveal a client's confidence about a planned crime?

A: The Committee concluded the lawyer is not bound to respect confidences about an announced intention to commit a crime; Canon 34 excludes such an intention and permits disclosure necessary to prevent the act or protect those threatened.

Q: Must the lawyer come forward and disclose the fraud?

A: No. The Committee found nothing in the Canons compels the lawyer to testify or disclose; whether to do so is a matter of personal, not legal, ethics (though it noted good citizenship would seem to call for disclosure).

Q: Did the confidence have to be an express statement of intent to use perjury?

A: The Committee said reading Canon 34 to permit disclosure only on an express announcement of intent to use perjured testimony would not accord with the spirit of the Canon.

Background and rules framework

The opinion interprets former Texas Canons 6 and 34, which protected a client's confidences and secrets but excluded an announced intention to commit a crime. The modern analog is ABA Model Rule 1.6 (confidentiality of information), including the exceptions that permit disclosure to prevent crime or fraud.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information), as the modern analog
• Texas Canons 6 and 34 (former canons on client confidences and secrets)

Statutes:

• Article 713, Texas Code of Criminal Procedure (attorney-client privilege policy, as cited)

See also

• TX Ethics Op. 203: Releasing a Drafted Contract Without Consent
• TX Ethics Op. 214: Withholding a Defense and Candor
• TX Ethics Op. 213: Settlement Demands Pleaded in a Petition

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-204/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_204.pdf

Original opinion text

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

QUESTION PRESENTED

A widow brought deceased husband's unsigned will to an attorney, stating a desire to have it probated merely because it named her as Independent Executrix and would thus save the estate some money in the administration of the estate. Client admits testator never signed the will, but stated that she could get two witnesses who would swear that testator had signed same. The attorney advised the client she could not do so, and further that any such witnesses she might procure would be committing a crime. The attorney set a fee for the interview, and was told by the client that she would consult the children and contact him later if they desired to retain him. His fee was paid and nothing further was heard from the client. \
The attorney was later consulted by testator's daughter by a former marriage from whom he learned that the widow had indeed probated such a will as had been earlier described to him, upon affidavit by two witnesses that they had witnessed the original at the testator's request. Attorney advised the daughter that he could not represent her, without disclosing his reason, and advised her to secure another attorney. The attorney checked the probate file and is convinced the widow is perpetrating a fraud upon the testator's children, including the daughter by his previous marriage.
Based upon the foregoing: (1) may the attorney testify as to the facts disclosed by the widow at the earlier interview, and (2) should the attorney volunteer to testify and disclose the facts either to the court or to the attorneys involved, or both?

18 Baylor L. Rev. 291 (1966)

CONFIDENCES OF A CLIENT - WILL - INTENTION TO COMMIT A CRIME
When an attorney is made aware in confidence that a client is contemplating commission of a crime and later finds that the client has committed such crime, attorney is not bound to respect confidences of client. Whether or not attorney should reveal such facts is a matter of personal and not legal ethics.

Canons 6, 34.

As to the question one, the Committee is of the opinion that the attorney can testify as to the facts learned from the client at the earlier interview, despite the facts that such a course of action clearly involved disclosure of the confidences and secrets of a client. The policy underlying Art. 713, C.C.P. and Texas Canons 6 and 34Χthat of providing an atmosphere of security conducive to a client's full disclosure of facts to his attorneyΧdoes not extend to the protection of a client who seeks legal advice as to a prospective crime. Texas Canon 34 expressly provides that the announced intention to commit a crime is not included within the confidence the attorney is bound to respect, and that he can properly make such disclosures as are necessary to prevent the act or protect those against whom it is threatened. A strict interpretation of this provision would perhaps permit disclosure only when the client has expressly announced that she is going to probate the will by use of perjured testimony, but such a strict interpretation would not be in accord with the spirit of Canon 34.

As to question two, the Committee is of the opinion that while nothing prevents an attorney from testifying in this matter, there is, at the same time, nothing in the Canons compelling the attorney to do so. The question is one of personal rather than legal ethics, though the duties of good citizenship would seem to call for disclosure. (5-1)

Tex. Comm. On Professional Ethics, Op. 204 (1960)