Can a lawyer reveal a former client's criminal record to warn an employer when the former client takes a job that puts vulnerable people at risk?
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This page answers the general question as of 1990. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer had represented a camp counselor accused of indecent assault on children under his supervision; the client pleaded guilty to assault and battery, served probation, and moved on. Years later the lawyer, a trustee of an organization running a camp for abused children, encountered the former client working there as a counselor again. The lawyer asked whether he could reveal the former client's criminal record to the camp.
The committee first held that the confidentiality duty under DR 4-101(B), and its exceptions in DR 4-101(C), apply to former clients as well as current ones (Opinion 75-7). It treated the arrest and plea record as a "secret" even though technically public, because it came to the lawyer through the representation and was not so currently notorious as to lose protection. Disclosure was therefore barred unless an exception applied. Under DR 4-101(C)(1), the prior relationship let the lawyer discuss with the former client the advisability of revealing his history to the camp, though acting as a camp trustee on the matter would create a conflict between the lawyer's duties to the former client and to the camp. The hard case arose if the client refused to disclose, leaving only DR 4-101(C)(3), which permits revealing "the intention of his client to commit a crime and the information necessary to prevent the crime."
The committee adopted a single standard for when DR 4-101(C)(3) is triggered: the lawyer must conclude the client is "reasonably likely" to intend to commit a crime, rejecting both a "possibility" threshold (too low) and a spectrum of varying standards (too confusing). It added that if the lawyer believes the former client is reasonably likely to be driven by compulsion to repeat such acts, the client "intends" the crime for purposes of the rule. Even when the standard is met, the lawyer retains discretion whether to disclose, weighing the seriousness of the crime, the privacy of the information, and the consequences to the client. If the lawyer decides to act, he should first try to persuade the client to disclose himself, then reveal only the minimum information needed (possibly no more than the public record) to the camp or the authority responsible for the children. The committee said lawyers should not be disciplined for any reasonable judgment either way, and noted (without deciding substantive law) the parallel tort questions of a duty to warn, citing Tarasoff.
Currency note
This opinion was issued in 1990, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Does the confidentiality duty protect a former client's information?
A: Yes. The committee held that DR 4-101's protection, and its exceptions, apply to former clients as well as current ones, and it treated the former client's arrest and plea record as a protected "secret" because it came to the lawyer through the representation.
Q: When may the lawyer reveal the information to prevent a crime?
A: When the lawyer concludes the former client is "reasonably likely" to intend a crime against the children in his care. That standard triggers the DR 4-101(C)(3) discretion; the lawyer then still decides whether to exercise it.
Q: How much may the lawyer disclose?
A: Only the minimum confidential information necessary to alert the camp or the supervisory authority, possibly no more than the public record, and only after first trying to persuade the former client to disclose himself.
Background and rules framework
The opinion interpreted DR 4-101(B) (duty not to reveal or use a client's confidences and secrets) and DR 4-101(C)(1), (2), and (3) (exceptions for consent, law or court order, and intent to commit a crime). Those provisions correspond today to Model Rule 1.6 (confidentiality and its exceptions, including to prevent certain crimes) and Model Rule 1.9(c) (duties to former clients). The committee distinguished its earlier Opinion 84-3 and declined to read the "generally known" exception of proposed Model Rule 1.9 into the Massachusetts rule.
Citations and references
Rules of Professional Conduct:
- DR 4-101(B) / Model Rule 1.6 (confidentiality of client information)
- DR 4-101(C)(3) / Model Rule 1.6(b) (revealing intent to commit a crime; preventing harm)
- Model Rule 1.9(c) (use of a former client's information)
Cases:
- Tarasoff v. Regents of Univ. of Calif., 17 Cal. 3d 425, 551 P.2d 334 (1976) (duty to warn; cited on potential tort liability)
Other opinions and authorities cited:
- MBA Opinions 75-7 and 84-3 (former-client confidentiality)
- Georgia State Bar Op. 42 (1984); Wisconsin Formal Op. E-89 (1989) (discretion to disclose to prevent harm)
See also
- MA Bar Ethics Op. 91-4: A criminal client's lies to a probation officer and the duty to disclose
- MA Bar Ethics Op. 93-2: Disclosing a former client's alleged fraud
Source
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