If a lawyer learns a client committed a past felony related to the case, can the lawyer reveal it, and can a settlement require both sides to keep incriminating evidence secret?

Plain-English summary

The inquirer asked two questions: what are a lawyer's ethical obligations when, while representing two clients in litigation, the lawyer discovers that one or both clients committed a felony related to the litigation; and whether the civil case may be settled contingent on a mutual agreement not to reveal incriminating evidence of that felony. The committee assumed the lawyer learned of the past conduct directly or through discovery, that the misconduct is not ongoing and will not recur, that there is no legal requirement to report the felony, that no physical evidence will be destroyed or altered, that disclosure to the tribunal is not required, and that nondisclosure will not assist the client in a crime or fraud.

On those assumptions, the committee concluded that a lawyer is bound by RPC 1.6(a) not to reveal a client's misconduct without the client's consent or without meeting an exception in the rule. The committee said this prohibition does not apply to opposing counsel, except as it may relate to the confidences and secrets of the lawyer's own clients.

On the settlement question, the committee said there is no direct RPC prohibiting a lawyer from agreeing, or having a client agree, to preserve the secrets and confidences of the opposing party, provided that the agreement does not violate state or federal law and the threat of revelation does not violate RPC 3.1, 4.1(a), 4.4, or 8.4(b), (c), or (d). The committee noted it addressed only responsibilities under the Rules of Professional Conduct and did not opine on criminal or civil liability.

Currency note

This opinion was issued in 2002, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct, which substantially revised RPC 1.6 (including its disclosure exceptions). 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 Treat this page as historical context, not current guidance.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.

In practice

Under the Washington rules as they stood at the time of the opinion, the committee treated a client's past, completed felony (learned in confidence and not triggering any reporting, tribunal-disclosure, or crime/fraud-assistance duty) as protected by RPC 1.6(a), so the lawyer could not reveal it without consent or a rule exception. The opinion treats a mutual-secrecy settlement term as not, by itself, barred by the RPCs, conditioning it on compliance with other law and on the threat of revelation not crossing into the prohibitions of RPC 3.1, 4.1(a), 4.4, or 8.4(b)-(d). The committee expressly left criminal and civil liability to other law.

Common questions

Q: Can a lawyer reveal that a client committed a past felony related to the case?

A: On the assumed facts, the committee concluded RPC 1.6(a) bars the lawyer from revealing the client's misconduct without the client's consent or a rule exception.

Q: Does the confidentiality duty mean the lawyer must keep the opposing party's secrets too?

A: The committee said the RPC 1.6(a) prohibition does not apply to opposing counsel, except as it may relate to the confidences and secrets of the lawyer's own clients.

Q: Can the parties settle on a mutual agreement not to reveal incriminating evidence?

A: The committee said no RPC directly prohibits a lawyer or client from agreeing to preserve the opposing party's secrets, provided the agreement does not violate state or federal law and the threat of revelation does not violate RPC 3.1, 4.1(a), 4.4, or 8.4(b), (c), or (d).

Q: Did the committee address whether such a deal could be a crime?

A: No. The committee said it addressed only a lawyer's responsibilities under the Rules of Professional Conduct and did not opine as to criminal or civil liability.

Background and rules framework

The opinion applies Washington RPC 1.6 (confidentiality; corresponding to Model Rule 1.6) to a client's past criminal conduct, and frames the settlement-secrecy question against RPC 3.1 (meritorious claims and contentions), RPC 4.1 (truthfulness in statements to others), RPC 4.4 (respect for the rights of third persons), and RPC 8.4(b)-(d) (criminal acts, dishonesty, and conduct prejudicial to the administration of justice), corresponding to the same-numbered Model Rules. The committee confined itself to the RPCs and declined to address criminal or civil liability. The opinion reflects Washington's pre-2006 rule numbering.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Washington RPC 1.6(a) (confidentiality of information)
• Model Rule 3.1 / Washington RPC 3.1 (meritorious claims and contentions)
• Model Rule 4.1 / Washington RPC 4.1(a) (truthfulness in statements to others)
• Model Rule 4.4 / Washington RPC 4.4 (respect for rights of third persons)
• Model Rule 8.4 / Washington RPC 8.4(b), (c), (d) (criminal acts; dishonesty; conduct prejudicial to the administration of justice)

See also

• ABA Formal Op. 00-417: Settlement Terms Limiting Use of Information
• WSBA Ethics Op. 1328: Client's Fraudulent Settlement Document and the Duty to Withdraw
• WSBA Ethics Op. 1126: Disclosing That Minor Children Are Assisting a Criminal Act

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1246

Original opinion text

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

Advisory Opinion: 2004
Year Issued: 2002
RPC(s): RPC 1.6(a), 3.1, 4.1(a), 4.4, 8.4(b), 8.4(c), 8.4(d)
Subject: Disclosure of client`s criminal act

The inquirer asks what are the ethical obligations of a lawyer when the lawyer, representing two clients in litigation, discovers that one or both of the lawyer’s clients has committed a felony related to the litigation, and, second, may the civil case be settled contingent upon a mutual agreement not to reveal incriminating evidence of a felony related to the litigation.

The committee assumes for the purpose of this opinion that the lawyer learned of the client’s past conduct directly or through discovery and that the misconduct is not ongoing nor will it occur in the future. The inquirer also represents that there is no legal requirement to report the felony and that no physical evidence will be destroyed or altered, and that disclosure is not required to the tribunal, nor will the lawyer’s failure to disclose result in assisting the client in a criminal or fraudulent act.

Assuming the foregoing, the committee opines that a lawyer is bound by RPC 1.6(a) to not reveal a client’s misconduct without the client’s consent or without meeting an exception in the rule. This prohibition does not apply to opposing counsel, except as it may relate to the confidences and secrets of his own clients.

Concerning the settlement agreement, there is no direct RPC prohibiting a lawyer from agreeing or having a client agree to preserve the secrets and confidences of the opposing party, provided that such agreement does not violate state or federal law and the threat of revelation does not violate RPC 3.1, 4.1(a), 4.4 or 8.4(b), (c) or (d). The committee’s response addresses a lawyer’s responsibilities under the Rules of Professional Conduct, but does not opine as to criminal or civil liability.