Advisory Opinion: 2229
Year Issued: 2012
RPC(s): RPC 1.6, 1.6(b)(1). 1.6(b)(2), 1.7, 1.16(a)(1)
Subject: Reporting Client to Authorities and Client Confidentiality


Facts:

Attorney has an individual client who is involved in an ongoing financial scam (a confidence game or other fraudulent scheme), the facts of which attorney believes would constitute a crime under applicable state and/or federal law. Attorney learned of the scam in the course of representing the client, but attorney is not directly involved in the scam, nor does attorney believe the client has used his legal services to further the scam. Attorney has never represented the client in any formal proceeding before a tribunal. Attorney wants to volunteer information related to his client’s scam to the appropriate law enforcement authorities. May he ethically do so?

Analysis:

RPC 1.6(b)(2) states:

(b) A lawyer to the extent the lawyer reasonably believes necessary:

(2) may reveal information relating to the representation of a client to prevent the client from committing a crime. . . .

Comment [20] to RPC 1.6 provides:

Washington's Rule 1.6(b)(2), which authorizes disclosure to prevent a client from committing a crime, is significantly broader than the corresponding exception in the Model Rule. While the Model Rule permits a lawyer to reveal information relating to the representation to prevent the client from "committing a crime . . . that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used the lawyer's services," Washington's Rule permits the lawyer to reveal such information to prevent the commission of any crime.

Comment [14] to RPC 1.6 provides:

Paragraph (b) permits disclosure only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified. Where practicable, the lawyer should first seek to persuade the client to take suitable action to obviate the need for disclosure. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.

Comment [23] to RPC 1.6 provides:

. . . A lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of avoidable disclosure.

Conclusion:

On these facts, where the client’s financial scam does not appear to carry the risk of reasonably certain substantial bodily harm, the Rules of Professional Conduct do not require the attorney to disclose information about the scam to law enforcement. See RPC 1.6(b)(1). RPC 1.6(b)(2) does, however, allow the attorney to disclose information about the scam to law enforcement, as long as the attorney only shares that information he reasonably believes necessary to accomplish the law enforcement purpose of the disclosure. See Comments 14 and 23 to RPC 1.6. Here, it may not be “practicable” for the attorney to attempt to avoid disclosure by counseling the client to take “suitable action to obviate the need for disclosure,” and – in fact – any such attempt by the attorney may undercut the law enforcement purpose of the disclosure.

In these circumstances, it is likely that the attorney will be compelled to withdraw from continued representation of the client per RPC 1.16(a)(1), which provides that the attorney must withdraw if:

(a) . . .

(1) the representation will result in violation of the Rules of Professional Conduct or other law; . . .

Here, if the attorney elects to disclose information about the client’s scam, the attorney’s disclosure is likely to create a concurrent conflict of interest under RPC 1.7, in that it would likely create a substantial risk that his representation of the client would be materially limited by the attorney’s responsibility to a third person (e.g., law enforcement and/or victims of the client’s scam) and/or by the personal interest of the attorney (in determining to make the disclosure to law enforcement).

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Rules of Professional Conduct Committee. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law than the meaning of the Rules of Professional Conduct. Advisory Opinions are based upon facts of the inquiry as presented to the committee.