LEO 1087

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withdrawn from the case, but you are still retained by X to consult with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

CROSS REFERENCES