Ethics Opinion

Opinion No. 90-1

January 1990

Summary: If a client charged with a crime tells a lawyer that a witness is about to be murdered by a person involved in the crime, the lawyer has discretion to reveal the information to the appropriate authorities. If the information was a confidence or secret, DR 4-101(C)(3) permits the lawyer to reveal information sufficient to prevent the murder, whether or not the client would be criminally liable for the murder. Furthermore, the information received from the client may not even be a confidence or secret, but the committee has not sufficient facts to make a determination.

Facts: Client was apprehended in the course of selling stolen goods to a "fence" after X tipped off the police about the fence's operations. Client stated to his lawyer that one of the fences had told him not to worry about X's testimony. They were going to have him killed. The lawyer asked the committee whether he was permitted to warn the authorities about the danger to X.

Discussion: The first question presented by the inquiry is whether the information given to the lawyer was protected as a confidence or secret. DR 4-101(A) protects as a "confidence" information that would be protected by the attorney-client privilege; it also protects as a "secret" other information "gained in the professional relationship ... the disclosure of which would be embarrassing or would be likely to be detrimental to the client." A key issue under both headings is whether the critical information about the proposed murder had been given to the lawyer in "the professional relationship,'' that is, in connection with legal advice sought by the client, or whether the information was extraneous, thus leaving the attorney in the position of an ordinary citizen who learns that a crime is about to be committed.
It is possible that the client, in imparting this information, was seeking legal advice about his culpability for the prospective murder or about the effect of the removal of the witness on the existing case against him. Such information could then be protected as a "secret," if not a "confidence," under DR 4-101(A). Even if that is so, we believe that the lawyer has discretion to reveal enough of this information to prevent the crime under the permission granted by DR 4-101(C)(3) to reveal the "intention of his client to commit a crime and the information necessary to prevent the crime." In our view, the client sufficiently "intends" to commit a crime, for purposes of this rule, when he is legally an accomplice or participant in his criminal associates' plan to murder a witness against him, even if the associates have reasons for the murder in addition to helping the client.
If the lawyer decides to reveal confidential information in an attempt to prevent the crime, the question arises whether the lawyer has an obligation to warn his client beforehand that that is his plan. Ordinarily, a lawyer has an obligation to warn a client before taking an action that has a substantial adverse impact on the client's interests. This obligation might be thought to be especially strong when the client may have an opportunity to stop the proposed crime. We decline, however, to state an absolute rule because there are doubtless instances when lawyers may reasonably believe that their personal safety would be endangered by such warnings. That is a judgment to be made by the lawyer in each case.
Another plausible interpretation of the facts is that the client has imparted a confidence or secret to the lawyer but the client is not legally an accomplice or participant in the crime. He merely knows of it. The question then is whether the policy considerations that permit breaking a client's confidence to prevent harm to a third party by client, DR 4-101(C)(3), apply by analogy to permit breaking a client's confidence to prevent harm to a third party by someone affiliated with a client, even though there is no technical "conspiracy" or "accomplice" relationship. There is an argument that the latter is an a fortiori case to the former: if prevention of harm to a third party warrants overcoming a client's confidence at the expense of the client, then certainly it warrants overcoming a client's confidence when the expense is not to the client but to someone affiliated with the client. The counter argument is that the reason for the exception in DR 4-101(C)(3) is that clients ought not be free to seek legal advice about their own commission of a crime but that they ought to be free to seek legal advice about the effects of someone else's commission of a crime.
Our interpretation of the rules is that the breadth of the exception in DR 4-101(C)(3) indicates that its primary policy is to prevent harm to third parties. Therefore, when a client imparts confidential information that a third party is about to commit a crime and the information is closely related to the matter in which the lawyer is representing the client, then the lawyer has discretion, by analogy to DR 4-101(C)(3), to reveal that information in order to prevent the crime.
Thus far, we have been assuming that the purpose of the client in imparting the information to the lawyer was to secure legal advice. It is also possible that the client has not imparted the information to the lawyer to seek legal advice at all. The purpose of the lawyer's representation is to defend against a prosecution for a crime already committed. The revelation relates to commission of a future crime against a witness in the present case. In that light it is possible on the facts as stated to us that the revelation might have been extraneous to the professional relationship and hence neither a confidence nor a secret. We are not privy to the entire discussion between the lawyer and the client, and the lawyer will have to make the delicate decision whether the information was a confidence or secret in the light of the total conversation in the context of his representation. If the information was neither a confidence nor a secret, the lawyer may reveal it to the appropriate authorities.
An example of how skeptical one court was that a client would be seeking legal advice about another person's crime is Colman v. Heidenreich, 269 Ind. 419, 381 N.E.2d 866 (1978). In that case, a client, in the course of seeking legal advice for himself, had told his lawyer that a hit-and-run accident had been committed by a woman friend (also a client of the lawyer) and not by the person currently being prosecuted criminally and sued civilly by the victim. The lawyer revealed that fact to the prosecutor without naming the hit-and-run driver. When the prosecutor informed the defendant of the conversation, the latter sought to compel the lawyer to testify. A divided court ruled that the attorney must reveal the name. The attorney-client privilege was found not applicable because the client had not revealed the information to the lawyer in the course of seeking legal advice for himself, even though the lawyer had testified that the revelation was relevant to the primary discussion. Nor had the woman sought legal advice on the matter from the lawyer either on her own or through her friend. The court's theory would also prevent the information from being considered a "secret" for purposes of the ethics rules because it would not have been given, in the majority's view, "in the professional relationship." Whether or not the Colman case is right on its facts, it is even harder to find a confidence or secret in a case when the revelation is of a third person's proposed future crime, as it is in the present inquiry, rather than completed past crime, as it was in Colman.
This opinion addresses only the ethical responsibility of a lawyer in the circumstances of this inquiry and not any tort liability that might arise in connection with a "duty to warn" the victim. This opinion also does not address the obligation of the lawyer if in fact X is actually murdered. See DR 7-102(B)(1) and our Opinion 89-1 for a discussion of some, but not all, of the relevant issues.

Permission to publish granted by the Board of Delegates on June 15, 1990. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.