MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2002-29
Obligation of lawyer to reveal information about fraud of non-client third party
You advise, in writing and by telephone, that you recently represented a client in a criminal matter. In that matter, the sentencing judge held off sentencing your client on a violation of probation charge to determine whether the client paid restitution to a crime victim. You agreed to hold restitution money from your client in trust for the victim. Your client's boyfriend, provided you with the name and telephone number of his cousin, who agreed to pay a portion of the client's restitution obligation. The cousin provided you with three credit card account numbers and authorized you to charge $1,500 for the benefit of your client. The cousin advised you that he did not know how much credit was available on the three cards. A $1,500 transaction was approved on one of the three accounts.
Several weeks later, a lawyer from South Carolina called you stating that his credit card showed a $1,500 charge to your office. The lawyer provided a credit card number identical to one given you by the cousin. The $1,500 was still in one of your trust accounts. The lawyer asked for information about the cousin, to report him to the loss-prevention division of the affected credit card company. Your account has since been debited, and the lawyer's credit account recredited, $1,500. Your client never paid restitution and was convicted of the charge of Violation of Probation. Your file in your client's criminal case is now closed. You ask what if anything you can disclose to a private investigator or police agency about the boyfriend's cousin and the three credit card numbers he provided to you.
We direct your attention to Rule 1.6 of the Maryland Rules of Professional Conduct. Rule 1.6 pertains to a lawyer's fundamental obligation not to reveal information relating to representation of a client. The rationale for maintaining the confidentiality of client information is clearly set forth in the comments to Rule 1.6. With this Rule in place, the client is encouraged to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. This Committee recently opined in Ethics Docket 2001-18 (which is available for your review at the Maryland State Bar Association website, www.msba.org) that the rule applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. As such, the Rule mandates that an attorney shall not reveal confidential information absent consent unless the information falls within one of the exceptions found in subsection (b). In the event you believe that your client was involved with the boyfriend's cousin in the apparent fraud against the credit card company, Rule (b)(2) allows you to reveal confidential information relating to your representation of the client to rectify the consequences of the criminal or fraudulent acts in the furtherance of which your services were used.
In addition, Rule 8.4(d) establishes that it is misconduct for a lawyer to engage in conduct that is prejudice to the administration of justice. Refusal to cooperate with an investigation, civil or criminal, into the cousin's possession and unauthorized use of another individual's credit card account could be prejudicial to the administration of justice. Nothing in the fact situation presented by you indicated that it would be necessary for you to reveal information about your client or your representation of her in the event that you decide to discuss the cousin's conduct with any investigator or police agency. The Committee feels that although an attorney is under no formal obligation to report the illegal or fraudulent conduct of the cousin, it would be a service to the public to do so.