LEO: Attorney Client - Confidences LE Op. 1087
Attorney Client - Confidences and Secrets.
June 17, 1988
You advise that you represented X in a divorce matter. During the evening
hours of a later date, you received telephone messages from X, by way of a
friend and by way of a telephone answering device, to the effect that I
have blown her away." Upon receiving those messages, you made immediate
attempts to contact X to determine the circumstances and background
regarding this message. Since you were unable to do so, and out of great
concern that someone may have been injured, you attempted to verify
whether the incident had occurred. You sought verification from the police
department and enclosed with your inquiry a transcript of that telephone
call, which unbeknownst to you was being recorded. Being unable to gain
any verification from the police department or from X, you set out for X's
residence to determine if you might be of assistance. Upon arriving, it
was your determination that X needed to be committed immediately for
psychiatric evaluation and you took X directly to the hospital. However,
during the course of your involvement with X in obtaining his
hospitalization, X, unbeknownst to you, deposited a weapon in your
vehicle. At a later time during the evening, after he had been
hospitalized, X advised you that the weapon was in your car. You
immediately retained the service of an attorney to counsel you as to what
steps you should take with regard to the weapon. You ultimately had an
unnamed individual deposit this weapon with the Commonwealth's attorney.
You advise the Committee that you believed you were X's counsel
throughout this entire incident. You have subsequently been advised by the
Commonwealth's attorney that you will be called as a witness in this case
regarding your telephone conversation with the police department. You have
withdrawn from the case, but you are still retained by X to consult with
him regarding this matter.
You wish to know whether or not it would be proper for you to testify as
to any aspect of your representation of X, including the telephone calls
to the police department.
DR:4-101(B)(1) states that an attorney shall not reveal the
confidences or secrets of his client. DR:4-101(B)(2) and (3) state
respectively that an attorney shall not use the confidence or secret of
its client to the disadvantage of the client, and an attorney shall not
use the confidences or secrets of his clients for the advantage of himself
or a third person unless the client consents after disclosure.
DR:4-101(D)(1) states that a lawyer shall reveal the intention of his
client, as stated by the client, to commit a crime and the information
necessary to prevent the crime, but before revealing such information, the
attorney shall, where feasible, advise his client of the possible legal
consequences of his action, urge the client not to commit the crime, and
advise the client that the attorney must reveal the client's criminal
intention unless thereupon abandoned, and, if the crime involves perjury
by the client, that the attorney shall seek to withdraw its counsel.
The Committee opines that it would be improper for you to reveal any
knowledge you gained about your client's crime. Since the message you
received from your client indicated that the crime had already occurred,
it would not be considered a future crime. Therefore, DR:4-101(B)(1), (2)
and (3) and not DR:4-101(D) apply in this situation.
Committee Opinion June 17, 1988
See also LE Op. 1324, and LE Op. 1352.