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MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1989-30
Confidentiality of Information; attorney suspicious of holding embezzled funds
Your letter sets forth the following facts. Lawyer represents defendant in a criminal case, which is resolved by negotiating an agreement with the prosecutor whereby the defendant might obtain a dismissal or ""stet"" of the criminal charge if the defendant successfully achieves a restitution to the victim. Pursuant to this understanding, defendant sends his lawyer a money order which the lawyer places in his escrow account. Several weeks later the lawyer discovers from a newspaper article that the defendant was arrested and charged in another state for allegedly embezzling a large sum of money. The lawyer does not represent defendant in the embezzlement case. The lawyer is suspicious as to whether the money sent to him constituted the fruits of the embezzlement scheme. However, defendant has told the lawyer's secretary that the money that he sent represented lottery winnings.
Based on the foregoing facts, you want to know whether the lawyer should inform the authorities in the other state of the existence of the escrow funds (which have not been paid over to the victim of the case in which you represent the defendant), or whether the lawyer is obligated to protect the attorney-client relationship involving confidentiality.
The problem that you pose is dealt with in Rule 1.6 of the Maryland Rules of Professional
Conduct, which pertains to situations where a lawyer shall not reveal or may reveal information relating to the representation of a client. Rule 1.6(a) sets forth the general rule that a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation. Rule 1.6(b) provides, in pertinent part, as follows:
(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent the client from committing a criminal or fraudulent act that the lawyer believes is likely to result in death or substantial bodily harm or in substantial injury to the financial interests or property of another.
(2) to rectify the consequences of a client's criminal or fraudulent act in the furtherance of which the lawyer's services were used.
It is important to note that Rule 1.6(b) is phrased in ""permissive"" rather than ""mandatory"" language in that the rule permits, but does not require, the lawyer to disclose certain information if various requirements are satisfied. Furthermore, based on the foregoing facts, it would appear that disclosure to the other state's authorities in this instance would not even be permissible. Rule 1.6(b) (1) addresses the permissibility of disclosure in order ""to prevent"" the client from committing certain types of crimes; yet, you indicate that the crime alleged to have been committed by your client in the other state has already been consummated. Furthermore, Rule 1.6(b) (2) does not apply because your legal services were not utilized to further the alleged criminal conduct of your client in the other state.
Accordingly, this Committee believes that it would be improper and unethical for you to disclose to the authorities in the other state the fact of your receipt of funds from your client.
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