Opinion 466

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics

Opinion #466 – 04/21/1977 (47-77)

Topic: Confidences and secrets; evidence of criminal conduct
Digest: Lawyer may not accept proceeds of crime from client for safekeeping and should not reveal client’s proffer
Code:  Canons 1, 4 and 7; EC 1-4, 4-1 and 7-27; DR 1-102, 2-110, 4-101 and 7-102

QUESTION

A client, having been convicted of embezzlement, has requested his lawyer prior to the imposition of sentence to accept and retain for safekeeping certain negotiable instruments purchased by the client with the proceeds of his crime. Under such circumstances, what is the duty of the lawyer?

OPINION

Canon 4, which enjoins lawyers to preserve the confidences and secrets of their clients, is intended to encourage clients to take full advantage of the benefits which may be derived from legal counsel and consultation. EC 4-L It does not relieve lawyers from their obligation as stated in Canon 1 to “assist in maintaining the integrity and competence of the legal profession.” See, EC 1-4 and DR 1-102(A). It is not intended to suggest that lawyers may ever exceed “the bounds of the law.” Canon 7. And, it most assuredly is not intended to create a means by which a client can conceal evidence through the artifice of storing it with his lawyer or reap the benefits of his crime by depositing its proceeds with him for safekeeping. See, N. Y. State 405 (1975) and, In re Ryder, 263 F. Supp. 360, aff’d, 381 F 2d 713 (4th Cir 1967). The ethics of our profession have long differentiated between a lawyer’s right to protect information acquired by him in the course of his representation of a client and affirmative action on his part leading to the suppression of evidence or in furtherance of criminal conduct.An example of the former was presented in N. Y. State 405, supra, where we held that a lawyer, who was informed by his client as to the location of property which the client was charged with stealing, had no affirmative obligation to disclose such information to the authorities, citing EC 4-5 and CPLR 4503(a). Another example is found in ABA 23 (1930) which held that a lawyer for a fugitive whose bond had been forfeited and who learned the whereabouts of his client in a confidential communication from his client’s relatives had no duty to disclose that information. Again, in ABA 287 (1953) it was held that a lawyer was under no obligation to reveal his client’s perjury in a divorce case when he discovered it after the trial. Each of these cases involve merely passive conduct and the lawyer was held to be under no duty to come forward “‘with the information in his possession.A very different result would obtain if the lawyer engaged in affirmative acts in aid of his client’s wrongdoing. Such a situation was presented in, In re Ryder, supra, where a lawyer transferred a weapon and stolen money from his client’s safe deposit box to his own pursuant to a power of attorney authorizing him to “so dispose of the said contents as he sees fit.” The lawyer knew at the time that his client was charged with armed robbery. The court held that such conduct was illegal as well as unethical arid that the lawyer was in no way protected by his claim of attorney-client privilege.While it is thus evident that the lawyer in question cannot accept and must immediately reject his client’s proffer of the negotiable instruments, the lawyer’s ethical obligation with respect to his client’s belated disclosure requires further exposition.This Association’s recent amendment of DR 7-102(B)(1) removes any doubt concerning the lawyer’s ability to remain silent and withhold from all others his client’s proffer of the negotiable instruments or information which would serve to reveal their existence. Clearly, information which is either “confidential” or “secret” within the definitions set forth at DR 4-101(A) need not now be revealed N.Y. State 454 (1976) In the present context, it is not necessary to determine whether such information would be entitled to protection under the evidentiary privilege, for it obviously falls within the broad definition of a “secret.”Since there is no longer any question as to whether the subject information need be revealed, the only remaining question is whether the lawyer may elect to reveal the existence of the negotiable instruments or if some other action on his part would be justified in view of his client’s belated disclosure.Whether or to what extent the lawyer may reveal this information is determined solely by reference to DR 4-101(C). On the facts presented, since the existence of the negotiable instruments is not immediately relevant to any pending proceeding, we believe that the lawyer should remain silent in accordance with the general proscription against revealing confidences and secrets set forth at DR 4-101 (B)(1) See, N.Y. State Los, supra. For the same reason, no other affirmative action on the part of the lawyer would seem to be appropriate.A different situation could develop if, for example, the client were to volunteer to testify at the time of his sentencing or obtain a new trial as the result of a successful appeal. In either of the latter two events, since continued representation of the client could foreseeably involve the lawyer in a violation of DR 7-102 (A) (3) through (7), he might then properly consider withdraw on the grounds set forth at DR 2-110. Cf, DR 2- 110(B)(2) with DR 2- 110(C)(1)(c) and DR 2- 110(C)(2).

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