When can a lawyer reveal a client's confidences to stop a crime, and does possessing stolen property count as an intent to commit a future crime?

Plain-English summary

A prospective client accused of stealing a car consults a lawyer to defend against the theft charge, says the car is parked at his home, and proposes to pay the retainer in cash he needs a few days to "raise," while appearing to have no legitimate income. The lawyer wonders whether she may tell authorities the client's identity and whereabouts, that he stole and still holds the car, and her concern that he intends another crime.

The opinion first confirms the information is both a "confidence" (privileged) and a "secret" under DR 4-101, so it may be revealed only if an exception applies. The only candidate is the permissive future-crime exception, DR 4-101(C)(3), which the Committee says is strictly construed and reaches only planned future crimes or an ongoing criminal scheme. On the stolen car, the opinion holds that although knowing possession of stolen property is itself a continuing crime under New York law, it does not authorize disclosure where the completed theft is the very subject the client consulted the lawyer about and all elements of the crime are already satisfied. It reasons that a literal "continuing crime" reading would erase the line between past and future conduct and gut the confidentiality principle that protects the right to counsel. The opinion notes one qualification: confidentiality must yield in rare emergencies involving imminent serious bodily injury or death.

On the proposed cash retainer, the opinion holds that the lawyer needs a reasonable belief, not unfettered subjective suspicion, that the client intends a future crime before disclosing. A lawyer may not "purposely close [her] eyes" to obvious signs (N.Y. City 81-81), but the cash-payment facts standing alone may not suffice; if she learns facts supporting a reasonable belief, she may then make permissive disclosure, weighing the EC 4-7 factors (seriousness, likelihood, imminence, availability of other means, and how she learned of the intent). The opinion grounds the reasonable-belief standard in Model Rule 1.6 and Sections 66-67 of the Restatement.

In practice

Under the New York Code as it stood at the time, the opinion holds that the future-crime disclosure exception is narrow on both axes the inquiry raised: it does not convert a client's continuing possession of stolen property into a disclosable future crime when the underlying theft is what the client sought help with, and it requires a reasonable belief rather than bare suspicion of intent before any disclosure. The opinion treats disclosure as permissive, not mandatory, and reserves a separate rule for emergencies threatening imminent death or serious bodily harm.

This opinion applies the former New York Code (DR/EC numbering). New York replaced the Code with the Rules of Professional Conduct effective April 1, 2009; the confidentiality rule DR 4-101 now corresponds to Rule 1.6, whose New York version sets out the permissive-disclosure exceptions. Verify the current rule text before relying on any specific requirement.

Common questions

Q: Can a lawyer report a client who possesses stolen property?

A: Not on these facts. The opinion concludes continuing possession of stolen property, where the completed theft is the matter the client consulted about, does not manifest an intent to commit a future crime under DR 4-101(C)(3).

Q: How sure must the lawyer be that a crime is coming?

A: The opinion concludes the lawyer must have a reasonable basis for believing the client intends a crime; a mere subjective suspicion, however unreasonable, is not enough.

Q: Does a lawyer have to disclose a future crime?

A: No. The opinion treats DR 4-101(C)(3) disclosure as permissive, and lists the EC 4-7 factors (seriousness, likelihood, imminence, alternatives) the lawyer should weigh in deciding.

Q: Are there situations where confidentiality must yield?

A: The opinion recognizes a narrow exception for rare emergencies involving the prevention of imminent serious bodily injury or death, where client confidentiality must give way to protecting life.

Background and rules framework

The opinion interprets the former New York Code's confidentiality rule DR 4-101, including the permissive future-crime exception DR 4-101(C)(3), and the discretionary factors of EC 4-7. The corresponding Model Rule is MR 1.6. It draws on Model Rule 1.6 and Sections 66 and 67 of the Restatement (Third) of the Law Governing Lawyers, and on prior New York opinions including N.Y. City 81-81 and N.Y. County 712.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information) / NY DR 4-101, DR 4-101(C)(3), EC 4-7

Statutes:

• N.Y. Penal Law Section 165.45 et seq. (criminal possession of stolen property)

Other opinions cited:

• N.Y. City 81-81 (no purposeful blindness to a client's illegal conduct)
• N.Y. County 712 (1996); N.Y. City 1994-10; N.Y. City 1994-8

See also

• NYC Bar Ethics Op. 2018-1: Protective Action and Disclosures of Confidential Information
• ISBA Ethics Op. 12-08: Duty to Disclose Confidential Information Provided by a Client

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2002-1-client-confidentiality-and-the-intention-to-commit-a-crime/