Opinion 2004-13
(February 2005)

The inquirer states that there is an arrest warrant out for a friend of inquirer for insurance fraud. The friend is not inquirer's client.  This friend has written a screenplay about his own life and has received offers from various studios to purchase the rights to the screenplay. The friend cannot sell his rights because he is afraid the U.S. Attorney's office will discover his location.

The inquirer seeks guidance as to the following issues:

1.  Does the inquirer have a duty to voluntarily disclose his friend's whereabouts or cooperate in the criminal investigation in general?

2.    What if there is an attorney-client relationship between Inquirer and his friend?

3.    Can Inquirer purchase the rights to the screenplay from his friend?

The Committee notes that effective January 1, 2005, substantial changes to the Pennsylvania Rules of Professional Conduct (the "Rules") took effect and that by order of the Pennsylvania Supreme Court "shall govern matters thereafter commenced and, insofar as just and practicable, matters then pending." This opinion addresses the inquirer's concerns under those new rules.  

Whether or not the inquirer has a duty to disclose his friend's whereabouts depends on several factors, some of which are not provided in the inquiry. As a preliminary issue, Rule 1.6(c)(5) provides that, "a lawyer may disclose information necessary to secure legal advice about the lawyer's compliance with these Rules--"  This should give the inquirer some comfort in being more forthcoming about the facts of his inquiry. 

If the friend is not the inquirer's client, then the Rules do not directly apply to the inquiry.  Substantive law issues, including but not limited to whether purchasing the screenplay may implicate the inquirer in criminal conduct, may be relevant to the inquirer's decision as to his course of action. Clearly, commission of any crime, even if unrelated to a client representation can constitute a violation of Rule 8.4b (see further discussion below.) However, this Committee is limited to ethical considerations raised by the Rules and as such, will address the inquirer's questions assuming that the friend is the inquirer's client.

Rule 1.6, "Confidentiality of Information," gives guidance as to what a lawyer may disclose regarding a client. It provides that,

(a)        A lawyer shall not reveal information relating to representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraphs (b) and (c).

(b)        A lawyer shall reveal such information if necessary to comply with the duties stated in Rule 3.3 [Candor Toward the Tribunal].

(c)        A lawyer may reveal such information to the extent that the lawyer reasonably believes necessary:

(1)        to prevent reasonably certain death or substantial bodily harm;

(2)        to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm or substantial injury to the financial interests or property of another;

(3)        to prevent, mitigate or rectify the consequences of a client's criminal or fraudulent act in the commission of which the lawyer's services are being or had been used;

(4)        to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(5)        to secure legal advice about the lawyer's compliance with these Rules; or

            (6)        to effectuate the sale of a law practice consistent with Rule 1.17.

(d)        The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.

Thus, the inquirer is not obligated to disclose such information, unless he is representing his client before a tribunal and the information is material to the proceeding, in which case, he must disclose it. (See Rule 3.3).  However, the inquirer may disclose his client's whereabouts if, for example, the client used inquirer's services in order to commit the insurance fraud (Rule 1.6c3). The inquirer may not disclose the information unless one of the exceptions set forth in Rule 1.6 applies.

Rule Conduct 4.1, "Truthfulness in Statements to Others," provides that;

In the course of representing a client a lawyer shall not knowingly:

(a)       make a false statement of material fact or law to a third person; or

(b)       fail to disclose a material fact to a third person when disclosure is necessary to avoid aiding and abetting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Thus, the inquirer may not make a false statement of material fact (such as falsely stating he is unaware of his client's whereabouts) to a third person (such as the U.S. Attorney). Furthermore, unless disclosure is prohibited by Rule 1.6, the inquirer may not fail to disclose to the U.S. Attorney his client's whereabouts, if to do so would be aiding and abetting the insurance fraud, unless such disclosure is prohibited by Rule 1.6.

Rule 8.4, "Misconduct," provides in relevant part that it is professional misconduct for a lawyer to:

(a)       violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b)       commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c)        engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d)       engage in conduct that is prejudicial to the administration of justice.

Rule 8.4 applies to the inquirer regardless of his client representations.  If it is a criminal act to fail to cooperate in a criminal investigation, then the inquirer must cooperate.  The inquirer can decline to answer a questions as to his client's whereabouts without violating Rule 8.4, but he cannot say he does not know where his client is if he does know.  If the inquirer is representing his friend in the criminal investigation, then Rule 1.6 will apply, but the inquirer must remain cognizant of the obligations imposed by Rule 8.4.

Regarding the inquirer's purchase of the rights to his client's screenplay, Rule 1.8 provides in relevant part that,

(a)       A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:

(1)       the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2)       the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and

(3)       the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role in the transaction, including whether the lawyer is representing the client in the transaction.

(b)       A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client gives informed consent, except as permitted or required by these Rules.

(d)       Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.

Thus, the inquirer must comply with the provisions of Rule 1.8(a) in purchasing the rights to his client's screenplay.  Under Rule 1.8(d), if the facts in the screenplay relate to the inquirer's representation of his client, then the inquirer may not purchase the screenplay rights until the representation is concluded. 

 

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.