March 1, 1991
A client's confession of commission of a crime to the client's lawyer is a confidence which may not be revealed by the lawyer unless the client consents. The lawyer's duty to protect the client's confidences and secrets continues even after the lawyer is discharged.
References: MRPC 1.6, 3.3; RI-13.
A lawyer was retained by a client's family to defend the client in a prosecution for charges of criminal sexual misconduct. The lawyer conducted an investigation, including conversations with the client in which the client admitted the acts and indicated a need for treatment. The lawyer represented the client through the preliminary examination at which the victims testified and the client did not. The client was bound over for trial. Shortly thereafter, the client discharged the lawyer.
Later, in casual conversation with the prosecutor, the lawyer learns that successor counsel obtained a psychological evaluation of the victims, and that the victims subsequently recanted their testimony and refused to cooperate with the prosecutor. The prosecutor offered a reduced charge and related plea agreement. The lawyer now asks whether the client's confession should be disclosed.
The client's confession to the lawyer was clearly a confidence under MRPC 1.6, which states:
"(a) 'Confidence' refers to information protected by the client-lawyer privilege under applicable law, and 'secret' refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
"(b) Except when permitted under paragraph (c), a lawyer shall not knowingly:
"(1) reveal a confidence or secret of a client;
"(2) use a confidence or secret of a client to the disadvantage of the client; or
"(3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
"(c) A lawyer may reveal:
"(1) confidences or secrets with the consent of the client or clients affected, but only after full disclosure to them;
"(2) confidences or secrets when permitted or required by these rules, or when required by law or by court order;
"(3) confidences and secrets to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used;
"(4) the intention of a client to commit a crime and the information necessary to prevent the crime; and
"(5) confidences or secrets necessary to establish or collect a fee, or to defend the lawyer or the lawyer's employees or associates against an accusation of wrongful conduct.
"(d) A lawyer shall exercise reasonable care to prevent employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by paragraph (c) through an employee."
Pursuant to MRPC 1.6(b)(2) a lawyer may not knowingly use a confidence or secret of a client to the disadvantage of the client, unless permitted under MRPC 1.6. Under MRPC 1.6(c), a lawyer may reveal confidences and secrets "to the extent reasonably necessary to rectify the consequences of a client's illegal or fraudulent act in the furtherance of which the lawyer's services have been used."
There is nothing in these facts which suggests the client used the lawyer's services in the course of the representation to further illegal or fraudulent activity.
MRPC 3.3 prohibits a lawyer from knowingly "failing to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." The client did not testify, did not commit perjury, or otherwise commit a fraudulent or criminal act in which the lawyer's services were used, therefore the duty does not apply. None of the other exceptions to the prohibition against a lawyer's disclosure of confidences is applicable. Therefore, the lawyer is obligated to maintain the client's confidences and may not disclose them. Mere suspicion of false testimony or inconsistent statements of a client, where the lawyer has no independent knowledge of the truth or falsity, are not sufficient to trigger the lawyer's duty under MRPC 3.3. See RI-13.
Implicit in the facts are two additional questions. First, even if the lawyer does not have a duty to disclose the client's confession, does the lawyer have discretion to so disclose? The answer is unequivocally no, in the absence of informed consent from the client. See, MRPC 1.6.
Second, may the lawyer discuss the client's case with third parties, without the consent of the client or the client's successor counsel? To the extent that "discuss" includes disclosing or revealing confidences or secrets, the answer is unequivocally no, without the informed consent of the client. If "discuss" means inquiries to find out the resolution of the case involving the client, without disclosing confidences or secrets, then those "discussions" are not prohibited.