Must a lawyer keep a client's confidence when the client threatens a crime, and may he pay a forwarding fee to the lawyer who referred the case?

Plain-English summary

A member represented a client, "X," referred by a local attorney, "A," in a circuit-court action the member deemed meritorious. The member came to believe that X and his wife had been intimidating the defendant, "D," using information from a private detective, and that the wife had made threats to D's personal safety. The member had advised them to stop and warned that he would withdraw if they continued. He asked the committee about his ethical duties to his client, to the profession, and to D, and he also disclosed that he intended to remit one-third of his fee to A as a forwarder's fee.

The committee set out the governing Canons. The duty to preserve a client's confidences outlasts the employment (Canon 37), but the announced intention of a client to commit a crime is not within the confidences a lawyer is bound to respect, and the lawyer may make such disclosures as are necessary to prevent the act or protect those threatened. The committee said the Code both permits and demands disclosure of an announced intention to commit a crime, but whether the lawyer should disclose to D or to the proper authorities was a decision for him, based on his own estimate of his client's present or future intentions. The committee also recited Canon 16 (best efforts to restrain a client) and Canon 44 (withdrawal on due notice for good cause).

On the forwarding fee, the committee concluded that, in the absence of actual service or responsibility assumed by the referring attorney, no division of fees was permissible. It relied on Canon 34 and on ABA Opinions 97, 153, and 265.

Currency note

This opinion was issued in 1960, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canons of the Canons of Professional Ethics, including Canon 37 (confidences), Canon 44 (withdrawal), and Canon 34 (division of fees); these subjects are now addressed by Rules 4-1.6, 4-1.16, and 4-1.5 of the Rules Regulating The Florida Bar (Model Rules 1.6, 1.16, and 1.5). The scope of permitted and required disclosure of client confidences has changed materially since 1960. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Does the duty of confidentiality end when the representation ends?

A: No. The committee stated, quoting former Canon 37, that the duty to preserve a client's confidences outlasts the lawyer's employment.

Q: Could the lawyer reveal his client's stated intention to commit a crime?

A: Yes. The committee said the Code both permits and demands disclosure of a client's announced intention to commit a crime, and that whether to disclose to the threatened party or to the proper authorities was left to the lawyer's judgment.

Q: What was the lawyer to do if the clients persisted?

A: Under Canon 16 he was to use his best efforts to restrain them, and under Canon 44 he could withdraw on due notice for good cause, allowing time to employ another lawyer.

Q: Could he pay the referring lawyer a one-third forwarding fee?

A: No. The committee concluded that, absent actual service or responsibility assumed by the referring attorney, no division of fees was permissible, citing Canon 34 and ABA Opinions 97, 153, and 265.

Background and rules framework

The opinion applied former Canons 1, 15, 16, 24, 32, 34, 37, and 44 of the Canons of Professional Ethics, and relied on ABA Opinions 97, 153, and 265. Confidentiality, withdrawal, and the division of fees are now addressed by Rules 4-1.6, 4-1.16, and 4-1.5 of the Rules Regulating The Florida Bar (Model Rules 1.6, 1.16, and 1.5). The committee's analysis treated the announced-crime exception to confidentiality as both permitting and requiring disclosure, while leaving the recipient to the lawyer's judgment, and treated the forwarding fee as impermissible without a corresponding division of service or responsibility.

Citations and references

Rules of Professional Conduct:

• Canon 37 [Canons of Professional Ethics; confidences; see current Rule 4-1.6]
• Canon 44 [Canons of Professional Ethics; withdrawal; see current Rule 4-1.16]
• Canon 34 [Canons of Professional Ethics; division of fees; see current Rule 4-1.5]
• Canons 1, 15, 16, 24, 32 [Canons of Professional Ethics]

Other opinions cited:

• ABA Opinion 97: improper to receive a fee merely for recommending a client to a lawyer.
• ABA Opinion 153: a division of fees must be based on a division of service or responsibility.
• ABA Opinion 265: engaging another lawyer to perform services does not by itself entitle one to a share of that lawyer's fee.

See also

• FL Bar Ethics Op. 04-1: Client Perjury, Disclosure, and Withdrawal
• FL Bar Ethics Op. 62-3: Fee Division With a Non-Practicing Lawyer
• FL Bar Ethics Op. 60-18: Fee Division on an Out-of-State Referral

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-59-23/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-59-23-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 59-23
February 11, 1960
Advisory ethics opinions are not binding.
It is the duty of a lawyer to preserve his clients' confidences and this duty outlasts the lawyer's employment, but the Canons demand that an attorney disclose any announced intention of his client to commit a crime. Whether such disclosure should be made only to proper authorities, or whether the lawyer should make disclosures to opposing parties and their counsel is a matter for the judgment of the lawyer. If a client expresses an intention to commit unlawful acts in connection with an otherwise meritorious lawsuit, the lawyer must use his best efforts to restrain his client.
A lawyer who withdraws from a case must do so in accordance with Canon 44, and a division of fees with another lawyer who referred the case is impermissible in the absence of actual service or responsibility assumed by the referring lawyer.
Canons: 1, 15, 16, 24, 32, 34, 37, 44
Opinions: ABA 97, 153, 265
Chairman Holcomb stated the opinion of the committee:
A member of The Florida Bar represents a client designated as "X" who was referred to him by a local attorney, "A," and on behalf of his client he filed an action in the Circuit Court against "D" on a cause of action which he deems meritorious. He has now come to the conclusion that "X" and his wife, whom he describes as over-emotional and who possibly has been under treatment for mental disturbances, have been intimidating "D" through information secured through a private detective, and that "X" and his wife have been trying to force a settlement of the lawsuit on the basis of this privately secured information. The member feels that both "X" and his wife are overwrought and has advised them to do nothing more and to stop negotiating directly with "D." "X's" wife has made threats concerning the personal safety of "D" to the lawyer, and he evidently regards these threats as a serious danger to "D" and has informed his client of the danger of the activities they are engaged in, both regarding criminal penalties and the possibility of jeopardizing a meritorious lawsuit, and he has advised them that if any further attempts to negotiate were made, he would withdraw from the case.
The member believes that "X" and his wife are now willing to permit the law to take its course, but fears their possible actions should the lawsuit be determined adversely to them. He also believes that the private detective may be selling information to "D" as well as to "X."
The attorney for "D" is withdrawing from the case, and the inquirer believes that he is cognizant of the situation. The new attorney for "D" may be the son of "A" who referred the matter to the member, who now inquires as to his ethical duties to his client and his ethical duties to the profession and his duties, if any, to "D."
Canon 24 of Rule B, Ethics Governing Attorneys, adopted by the Supreme Court of Florida, states that "(a)s to incidental matters not affecting the merits of the cause, or working substantial prejudice to the rights of the client, . . . no client has (the) right to demand that his counsel shall be illiberal, or that he shall do anything repugnant to his own sense of honor or propriety." Canon 1 states that it is the duty of the lawyer to maintain toward the Courts a respectful attitude, and Canon 15 asserts that ". . . it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of the attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicane. He must obey his own conscience and not that of his client."
Canon 16 reads: "A lawyer should use his best efforts to restrain and to prevent his client from doing those things which the lawyer himself ought not to do, particularly with reference to their conduct towards Courts, judicial officers, jurors, witnesses and suitors. If a client persists in such wrongdoing the lawyer should terminate their relation."
Canon 32 states: ". . . he advances the honor of his profession and the best interest of his client when he renders service or gives advice tending to impress upon the client and his undertaking exact compliance with the strictest principles of moral law."
This is a problem involving the confidences disclosed by "X" and his wife. Canon 37 states that "(i)t is the duty of a lawyer to preserve his client's confidences. This duty outlasts the lawyer's employment. . . ."
". . . The announced intention of a client to commit a crime is not included within the confidences which he is bound to respect. He may properly make such disclosures as may be necessary to prevent the act or protect those against whom it is threatened."
Canon 44 states: "The right of an attorney or counsel to withdraw from employment, once assumed, arises only from good cause. . . . The lawyer should not throw up the unfinished task to the detriment of his client except for reasons of honor or self-respect. If the client insists upon an unjust or immoral course in the conduct of his case . . . the lawyer may be warranted in withdrawing on due notice to the client, allowing him time to employ another lawyer. . . . Sundry other instances may arise in which withdrawal is to be justified."
One of the concluding paragraphs of his letter states that he intends to remit one-third of the fee as a forwarder's fee to "A," who sent the case to the inquirer, in the event of the successful prosecution of the case. Canon 34 states: "No division of fees for legal services is proper, except with another lawyer, based upon a division of service or responsibility." ABA Opinion 97 holds that it is improper for a lawyer to receive a fee for simply recommending a client to a lawyer, and ABA Opinion 153 holds that a division of fees must be based upon a division of service or responsibility. Opinion 265 holds that a lawyer engaging another lawyer to perform services for his clients is not ipso facto entitled to a share of the latter's fee.
Under the facts as stated, it appears that the member is presently convinced that his client will not take any steps to carry into effect the threats made by his client's wife regarding the personal safety of "D," but he still has some worries over what he describes as "the safety of the parties of the law suit" and the "venomous thing" which may again break out should his clients lose the pending litigation.
We believe that the Code of Ethics both permits and demands that an attorney disclose any announced intention of his client to commit a crime, but as to whether he should make such disclosure either to "D" or to the proper authorities must remain a decision to be made by him upon his own estimate as to the present or future intentions of his client. We believe this is the best answer that can be given to the question posed.
As to the other ethical question concerning the forwarding fee, he is advised that in the absence of actual service or responsibility assumed by the attorney who originally referred the matter, no division of fees is permissible.