Attorney Able serves on a bar association committee established to counsel and rehabilitate lawyers who suffer from substance abuse. The day before Able was to leave on a fishing trip, Able’s close friend Attorney Bill, disclosed to Able that, over the preceding two years, Bill had become heavily addicted to cocaine and was afraid he had committed criminal offenses in his banking activities as a result of his addiction. Bill asked Able to represent him. Able agreed, but explained that Able could do little for two weeks and would consult with Bill immediately upon Able’s return. While on the fishing trip, Chris, an accountant who knew that Able represented Bill, told Able that Chris had been retained by the trust department of Bank, a commercial bank, to audit several substantial trust accounts in which Bank and Bill are co-trustees. Chris also told Able that the audit furnished incontrovertible proof that Bill had embezzled more than $100,000 from the trust accounts. Must Able report Bill’s embezzlement to the appropriate disciplinary authority?
A. Yes, because Able learned of Bill’s embezzlement from Chris.
B. Yes, because Able’s failure to report would assist the concealment of Bill’s breach of trust.
C. No, because Able gained the information while representing Bill.
D. No, because the information will probably be made public by Bank.
Answer:C
Attorney Able serves on a bar association committee established to counsel and rehabilitate lawyers who suffer from substance abuse. The day before Able was to leave on a fishing trip, Able’s close friend Attorney Bill, disclosed to Able that, over the preceding two years, Bill had become heavily addicted to cocaine and was afraid he had committed criminal offenses in his banking activities as a result of his addiction. Bill asked Able to represent him. Able agreed, but explained that Able could do little for two weeks and would consult with Bill immediately upon Able’s return. While on the fishing trip, Chris, an accountant who knew that Able represented Bill, told Able that Chris had been retained by the trust department of Bank, a commercial bank, to audit several substantial trust accounts in which Bank and Bill are co-trustees. Chris also told Able that the audit furnished incontrovertible proof that Bill had embezzled more than $100,000 from the trust accounts. Must Able report Bill’s embezzlement to the appropriate disciplinary authority?
A. Yes, because Able learned of Bill’s embezzlement from Chris. B. Yes, because Able’s failure to report would assist the concealment of Bill’s breach of trust. C. No, because Able gained the information while representing Bill. D. No, because the information will probably be made public by Bank.
Explanation: The key here is “MUST.” The question asks whether disclosure is mandatory. Two mandatory disclosure situations are: (1) candor to the tribunal (Rule 3.3) and (2) disclosure of material facts where necessary to avoid assisting a crime or fraud by a client but only if disclosure falls under one of the exceptions to confidentiality in Rule 1.6 (Rule 4.1). Chris is not “assisting” Bill’s embezzlement. “B” is incorrect because the embezzlement is a past crime, and Able’s services were not used to further that crime, so Rule 1.6(b)(2)-(3) do not allow disclosure. Confidentiality covers all information learned about a client regardless of source. Where Able learned the information or the fact that the information may become public is irrelevant to the duty of confidentiality, which covers all information related to the representation. So, both “A” and “D” are incorrect. Accordingly, “C” is the correct answer.