On March 5, 2025, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility released Formal Opinion 515, addressing whether and to what extent lawyers may disclose information when they are victims of a crime committed by a client or a prospective client. See ABA Formal Opinion 515 (Mar. 5, 2025). The opinion clarifies that such disclosure is permissible under an implicit exception to the confidentiality duty under ABA Model Rule of Professional Conduct 1.6.
Key Takeaways from the Opinion
1. The Scope of Confidentiality and Exceptions
Model Rule 1.6 generally prohibits lawyers from revealing information related to client representation unless an express exception applies. While Rule 1.6(b) provides exceptions for preventing certain harms or defending the lawyer in disputes, it does not explicitly address situations where the lawyer is personally victimized by a client’s criminal conduct.
2. Recognizing an Implicit Exception
The ABA Committee opined that Rule 1.6 includes an implicit exception allowing a lawyer to disclose information about a crime committed against them, a colleague, or a family member when the lawyer is a witness to the crime. This exception enables lawyers to report the offense to law enforcement, seek legal remedies, or obtain necessary support services without violating confidentiality obligations.
3. Application to Hypothetical Scenarios
The opinion discusses various scenarios, including financial fraud schemes targeting lawyers, violent crimes, and thefts committed by clients. It differentiates between bona fide clients and those engaging in deception solely to commit fraud, noting that fraudsters posing as clients do not necessarily create a duty of confidentiality under Rule 1.6.
Practical Implications for Lawyers
1. Risk Management and Fraud Prevention
- Due Diligence on Clients: Lawyers should thoroughly vet prospective clients before engaging in representation, particularly in financial matters.
- Recognizing Red Flags: Email scams, immediate payment requests, and unusual banking transactions should prompt skepticism.
- Client Trust Account Safeguards: Lawyers should confirm the authenticity of financial instruments before disbursing funds.
2. Responding to Crimes Against Lawyers
- Immediate Reporting: If a lawyer is a crime victim, they should report the incident to law enforcement without undue concern about confidentiality restrictions.
- Assessing the Necessity of Disclosure: Disclosures should be limited to what is “reasonably necessary” for investigation or redress.
- Withdrawal from Representation: A lawyer victimized by a client may be required to withdraw under Rule 1.16 due to conflicts of interest and impaired ability to continue representation.
Ethical Considerations and the Future of Rule 1.6
Formal Opinion 515 provides clarity but also raises broader questions about the limits of Rule 1.6. It reinforces that professional ethics rules should not unduly hinder lawyers from seeking justice when they are personally harmed. Future discussions may explore whether a formal amendment to Rule 1.6 is warranted to explicitly codify this implicit exception.
In sum, the opinion provides essential guidance for lawyers navigating situations where client confidentiality intersects with personal security. Lawyers should remain vigilant, implement strong risk management practices, and be prepared to take appropriate legal action when necessary.
