Does a Washington lawyer in a divorce case have to report tax fraud by the client or by a non-client witness?

Plain-English summary

The inquiry arose in a marital dissolution in which the lawyer represented the husband. The first question was whether the lawyer has a duty to report a non-client witness for tax fraud that might also affect the client's tax or criminal liability. The committee concluded that under the Rules of Professional Conduct the attorney has no duty to report a non-client for the commission of a criminal act, and that the attorney cannot disclose the non-client's illegal conduct if the disclosure would be adverse to the attorney's client unless the client consents, the information is ordered revealed by the court, or disclosure fits within RPC 1.6(b)(1).

The second question was whether the lawyer has a duty to report the lawyer's own client as a party to tax fraud discovered through discovery during the representation. The committee concluded that under the described circumstances the attorney has no duty to report the past commission of an illegal or fraudulent act by the husband, and is prevented from doing so by RPC 1.6(a) unless the client consents, the information is ordered revealed by a court, or disclosure fits within RPC 1.6(b)(1).

Currency note

This opinion was issued in 1997, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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. Washington's cited rule corresponds to ABA Model Rule 1.6 (confidentiality of information).

Common questions

Q: Does a divorce lawyer have to report a non-client witness for tax fraud?

A: No. The committee concluded that the attorney has no duty to report a non-client for the commission of a criminal act.

Q: Can the lawyer voluntarily disclose the witness's tax fraud?

A: The committee said the attorney cannot disclose the non-client's illegal conduct if the disclosure would be adverse to the client, unless the client consents, a court orders the disclosure, or it fits within RPC 1.6(b)(1).

Q: Must the lawyer report the lawyer's own client's past tax fraud found in discovery?

A: No. The committee concluded the lawyer has no duty to report the client's past illegal or fraudulent act and is prevented from doing so by RPC 1.6(a) absent client consent, a court order, or the RPC 1.6(b)(1) exception.

Background and rules framework

The opinion applied RPC 1.6 (confidentiality of information, corresponding to ABA Model Rule 1.6) to information about possible tax fraud learned during a dissolution. RPC 1.6(a) supplied the general bar on disclosing information relating to the representation, and RPC 1.6(b)(1) supplied the exception the committee identified as the only path to permitted disclosure here, alongside client consent and a court order. The committee distinguished a duty to act from a permission to act and found neither a reporting duty nor, on these facts, a route to voluntary disclosure adverse to the client.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information); Washington RPC 1.6(a), 1.6(b)(1)

See also

• WA Ethics Op. 1418: Reporting a Prior Lawyer's Lie
• WA Ethics Op. 1633: Reporting a Former Partner's Theft
• WA Ethics Op. 1564: Disclosing a Partner's Overcharging

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=788

Original opinion text

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

Advisory Opinion: 1714
Year Issued: 1997
RPC(s): RPC 1.6(a); 1.6(b)(1)
Subject: Client confidence or secret; duty to report fraud by client or third party witness

The first issue raised was whether the attorney for the husband in a dissolution proceeding has a duty to report a non-client/witness for commission of tax fraud which may also affect the client's tax and/or criminal liability. It is the Committee's opinion that under the Rules of Professional Conduct, the attorney has no duty to report a non-client for the commission of a criminal act. The attorney cannot disclose the non-client's illegal conduct if the disclosure would be adverse to the attorney's client unless the client consents, the information is ordered to be revealed by the court, or disclosure fits within RPC 1.6(b)(1).

The second issue raised was whether the attorney for a party in a dissolution has a duty to report the attorney's own client as a party to a tax fraud, when discovered through discovery while representing the client. It is the Committee's opinion that the attorney for the husband under the described circumstances has no duty to report the past commission of an illegal or fraudulent act by the husband. The attorney is prevented from doing so by RPC 1.6(a) unless the client consents, the information is ordered to be revealed by a court, or disclosure fits within RPC 1.6(b)(1).