Joanna L. Storey Mishler

Senior Counsel
Rosing Pott & Strohbehn

501 W Broadway A380
San Diego , CA 92101

Email: jmishler@rosinglaw.com

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On March 5, 2025, the American Bar Association issued Formal Opinion 515 about a lawyer's discretion to report when a client commits a crime against the lawyer or against someone associated with, or related to, the lawyer. The opinion concludes that there is an implicit exception to the confidentiality protection of Model Rule of Professional Conduct ("MR") 1.6, such that the lawyer "may disclose information relating to the representation to the appropriate authority in order to seek an investigation and potential prosecution of the alleged offender or other services, remedy, or redress."

California lawyers, however, should be mindful that MR 1.6 and California Rule of Professional Conduct (CRPC) 1.6 differ. First, CRPC Rule 1.6 prohibits a lawyer from revealing information protected from disclosure under Business and Professions Code section 6068(e)(1) ["It is the duty of an attorney to ... maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client"]. Model Rule 1.6 does not include a similar provision.

Second, the only stated exception to this steadfast California confidentiality rule is when the lawyer "reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual." CRPC 1.6(b). Thus, the rule already permits a lawyer to disclose when a client intends to commit a violent crime regardless of the intended victim; although only after remonstrating with the client, if it is reasonable to do so under the circumstances. See CRPC 1.6(c). Notably, this disclosure exception applies only to future or ongoing criminal acts and does not allow a lawyer to disclose confidential information about a completed crime. Comment [3] to CRPC 1.6.

By contrast, MR 1.6(b) permits a lawyer to reveal confidential information to prevent a client from committing a financial crime against another person or to "prevent, mitigate or rectify substantial injury to the financial interests or property of another" if done "in furtherance of which the client has used [or is using] the lawyer's services." CRPC 1.6 does not provide for this exception.

Third, and even when a lawyer discloses confidential information under California's future or ongoing criminal act exception, "the lawyer's disclosure must be no more than is necessary to prevent the criminal act, given the information known to the lawyer at the time of the disclosure." CRPC 1.6(d).

While California lawyers should not blindly rely on ABA Formal Opinion 515 as guidance to permit disclosure of a client's criminal act against the lawyer or the lawyer's associates, the opinion offers four hypotheticals that California lawyers might consider based on other principles. Paramount to the opinion's discussion about the hypotheticals is the "threshold question" of "whether information the lawyer seeks to report is subject to the confidentiality duty of Rule 1.6(a) or Rule 1.18(b)." Opinion, p. 3. MR 1.18 and CRPC 1.18 relate to prospective clients. Does the information relate to a client or bona fide prospective client? Does the information about the crime relate to the representation?  

In the first hypothetical, a new sham client fraudulently induces the lawyer to use the lawyer's client trust account to transfer settlement funds; but the settlement check bounces. In such a situation, the individual may not be an actual client, a person with a good faith intention of seeking legal services from the lawyer. Therefore, the lawyer would not have a duty of confidentiality toward them.

In the second hypothetical, after receiving an unsolicited email from an unknown foreign creditor seeking to retain the lawyer, the lawyer conducts an inquiry and determines that the sender is a scam artist. Here, since the email was unsolicited and the lawyer did not engage with the sender, the lawyer owes no duty of confidentiality to the sender. CRPC 1.6 is not triggered because the sender is neither a client nor a prospective client. For purposes of CRPC 1.18, the lawyer in this hypothetical did not communicate with the sender; thus CRPC 1.18(b) does not apply. The lawyer is free to report the email to the authorities. Had the lawyer responded to the email, the result might be different.

In the third hypothetical, a current client shoots the lawyer or the lawyer's staff member with a firearm during a client meeting and then flees the building. Here, while CRPC 1.6 bars the lawyer from revealing confidential information learned during the representation, the client's criminal act was not done in furtherance of the representation. Thus, the lawyer is free to report the crime itself (the shooting). Moreover, a lawyer in this position would reasonably believe that the client's criminal act is ongoing and likely to result in the death of or substantial bodily injury to others, as the client flees the office. Thus, the lawyer may also disclose information reasonably necessary to prevent the ongoing criminal act under CRPC 1.6(b).

In the final hypothetical, after leaving a client unattended in the lawyer's office, the lawyer discovers that the client stole the lawyer's wallet. Here, there was no confidential communication because the client did not inform the lawyer that the client had stolen the wallet. The lawyer may report the crime to the authorities because the client's theft of the wallet was not done in furtherance of the representation. However, when reporting the crime, the lawyer must not reveal any confidential client information. In other words, the lawyer should state only the non-confidential facts - that the wallet went missing after the client was left unattended in the lawyer's office. Period.

The Rosing Pott & Strohbehn Ethics and Risk Management Team writes a monthly legal ethics column with practical insights to help California Practitioners understand cutting-edge ethics issues, manage risk, and ensure compliance. More about the Team and the authors--Heather Rosing, Dave Majchrzak, Christine Rosskopf, and Joanna Storey Mishler--can be found at https://rosinglaw.com/people/.