Can a Utah lawyer report an internet 'client' who turns out to be running a counterfeit-check scam against the lawyer?

Plain-English summary

Opinion 15-03 addresses the familiar internet collection scam aimed at lawyers. A purported client retains a firm over the internet to collect a large debt; the "debtor" sends payment to be forwarded to the client; the checks are counterfeit, and the lawyer is pressured to wire the funds before the checks clear. When told the money will not move until the check clears, the "client" disappears. The question is whether the lawyer may report the conduct to law enforcement.

The Committee answers yes. It reasons that whether the duty of confidentiality under Rule 1.6(a) applies turns on whether the purported client was an actual client and whether the information was obtained during a representation. Here the person never intended to form an attorney-client relationship; the purpose was to defraud the lawyer. Because the scammer is neither a client nor a prospective client entitled to confidentiality, the lawyer may disclose relevant information to investigators without breaching any duty.

The Committee notes that a number of other authorities reach the same result, citing New York State Bar Opinion 923 (which in turn cites California and South Carolina authority), an Oregon State Bar Bulletin article explaining that RPC 1.6 protects only actual or prospective clients, and Virginia State Bar ethics counsel concluding that a scammer has no reasonable expectation of confidentiality in communications used to obtain the lawyer's money under false pretenses. The Committee's conclusion is that the lawyer may disclose information about the counterfeit-check scheme without violating any ethical responsibility.

In practice

Under this opinion, a Utah lawyer who is targeted by a counterfeit-check collection scam may report the scheme and the perpetrator's information to law enforcement. The opinion holds that Rule 1.6's duty of confidentiality protects only actual or prospective clients, and a person who reaches out solely to defraud the lawyer is neither, so disclosing relevant information to investigators breaches no duty. Per the opinion, the analysis turns on the absence of any genuine intent to form an attorney-client relationship; the would-be "client" sought to victimize the lawyer rather than obtain legal services. This opinion was issued in 2015; confirm the current text of Utah Rule 1.6 before relying on the specifics here.

Common questions

Q: A fake client tried to run a counterfeit-check scam on me. Can I report them?

A: Yes. The opinion concludes that a person whose purpose is to defraud the lawyer rather than obtain legal services is not a client or prospective client, so the lawyer may give relevant information to law enforcement without breaching confidentiality.

Q: Does Rule 1.6 protect a scammer's communications?

A: No. The opinion explains that the Rule 1.6 duty applies only to actual or prospective clients; someone with no real intent to form an attorney-client relationship, who is only trying to victimize the lawyer, is owed no duty of confidentiality.

Q: What is the key fact that removes confidentiality?

A: Per the opinion, it is the absence of any genuine intent to create a lawyer-client relationship. Because the contact was made to defraud the lawyer, no actual or prospective client relationship arose and the information is not protected.

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 1.6 (confidentiality of information), which corresponds to ABA Model Rule 1.6. Rule 1.6(a) bars a lawyer from revealing information relating to the representation of a client, subject to exceptions, and the duty extends to prospective clients. The Committee's analysis hinges on the threshold question of whether an attorney-client (or prospective-client) relationship exists at all, concluding that a person who communicates with a lawyer solely to perpetrate a fraud is not within Rule 1.6's protection.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / Utah RPC 1.6(a) (confidentiality of information; applies to actual or prospective clients)

Other opinions cited:

• New York State Bar Ethics Opinion 923 (2012): no confidentiality owed to an internet scammer posing as a client (citing California and South Carolina authority)
• Oregon State Bar Bulletin (May 2010): RPC 1.6 protects only actual or prospective clients, so scam targets may cooperate with law enforcement
• Virginia State Bar ethics counsel guidance (2011): a scammer has no reasonable expectation of confidentiality in communications used to defraud the lawyer

See also

• ABA Formal Op. 515: Reporting a Client's Crime Against the Lawyer
• ABA Formal Op. 492: Obligations to Prospective Clients
• AK Bar Ethics Op. 2025-2: Safeguarding Trust Funds From Fraud

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2015-03/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2015-03.pdf

Original opinion text

Best-effort transcription from a two-column PDF, reassembled in the opinion's own section order. Minor errors may remain; the linked PDF is authoritative.

Opinion 15-03

Utah Ethics Opinion

Utah State Bar Ethics Advisory Opinion Committee

Issued February 10, 2015

ISSUE

1. Does an attorney breach a duty of confidentiality to a "client" by sending information about the client's actions and their contact information to law enforcement if they appear to be using the attorney/client relationship to commit a money fraud upon the attorney which could cause substantial injury to the attorney's financial interests?

FACTS

2. The query before the Committee relates to the issue that individuals have sought to retain a law firm via the Internet allegedly to collect a large debt from a party in Utah. The alleged debtor sends the law firm payment which is supposed to be forwarded to the client. The scam is that the checks are counterfeit and the attorney is asked to wire the funds immediately before the checks have cleared. When the "client" is informed that the funds will not be wired until the check clears, the client disappears. The issue is whether the attorney can report this conduct to law enforcement.

OPINION

3. An individual whose purpose in communicating with an attorney is to defraud that attorney rather than to obtain legal services is not a client or prospective client entitled to confidentiality. Therefore, it would not violate any ethical rules for an attorney to disclose relevant information to investigators. See New York State Bar Ass'n Committee on Prof. Ethics, Ethics Op. 923 (May 18, 2012).

ANALYSIS

4. Under Rule 1.6(a) of the Rules of Professional Conduct, a lawyer "shall not reveal information relating to the representation of a client," subject to certain exceptions. Whether an attorney is bound by this duty of confidentiality turns on whether the purported client was an actual client and whether the information was obtained during the representation. Under the circumstances presented here, an attorney has no duty of confidentiality under Rule 1.6 because the "client" never intended to form an attorney-client relationship, but rather sought to defraud the lawyer. Thus, the attorney may report the scheme without violating any duty of confidentiality.

5. A handful of state authorities have agreed that there is no duty of confidentiality owed to an internet scammer posing as a "client" solely for the purpose of perpetrating a crime in which the lawyer is the victim. New York State Bar Ass'n Committee on Prof. Ethics, Ethics Op. 923 (May 18, 2012) (citing California and South Carolina authority). As discussed in the Oregon State Bar Bulletin:

"...the duty imposed by RPC 1.6 and ORS 9.460(3) applies only to actual or prospective clients. If the person contacting the lawyer has no real intention of creating a lawyer-client relationship, but is only interested in victimizing the lawyer, then the person is not an actual client and the duty of confidentiality does not apply. In the absence of such a duty, there would seem to be no reason why lawyers who are the targets of these scams could not cooperate with law enforcement authorities in sharing whatever information they have about the perpetrator of the fraudulent scheme."

Hierschbiel, Helen, "Scammers Take Aim at Lawyers: How to Avoid Becoming the Next Victim," OSB Bulletin (May 2010).

The ethics counsel of the Virginia State Bar has also addressed the issue:

Although a formal opinion from the Standing Committee on Legal Ethics has not addressed this issue, the communications by and between the Internet scammer and lawyer are not protected as confidential. The initial uninvited e-mail communication from the scammer and the communications that follow are not for the purpose of obtaining any legal advice or legal representation. The scammer does not have any "reasonable expectation of confidentiality" in the communications used to obtain the lawyer's money under false pretenses. Therefore, reporting such information to the appropriate law enforcement authorities is not a breach of the lawyer's duty of confidentiality.

James M. McCauley, Virginia State Bar Ethics Counsel, "Internet Scams Target Lawyers", March 28, 2011.

CONCLUSION

6. The Committee believes you may disclose information regarding the counterfeit check scheme without violating your ethical responsibilities.