Opinion 2004

The inquirer asks what are the ethical obligations of a lawyer when the lawyer, representing two clients in litigation, discovers that one or both of the lawyer’s clients has committed a felony related to the litigation, and, second, may the civil case be settled contingent upon a mutual agreement not to reveal incriminating evidence of a felony related to the litigation.

The committee assumes for the purpose of this opinion that the lawyer learned of the client’s past conduct directly or through discovery and that the misconduct is not ongoing nor will it occur in the future. The inquirer also represents that there is no legal requirement to report the felony and that no physical evidence will be destroyed or altered, and that disclosure is not required to the tribunal, nor will the lawyer’s failure to disclose result in assisting the client in a criminal or fraudulent act.

Assuming the foregoing, the committee opines that a lawyer is bound by RPC 1.6(a) to not reveal a client’s misconduct without the client’s consent or without meeting an exception in the rule. This prohibition does not apply to opposing counsel, except as it may relate to the confidences and secrets of his own clients.

Concerning the settlement agreement, there is no direct RPC prohibiting a lawyer from agreeing or having a client agree to preserve the secrets and confidences of the opposing party, provided that such agreement does not violate state or federal law and the threat of revelation does not violate RPC 3.1, 4.1(a), 4.4 or 8.4(b), (c) or (d). The committee’s response addresses a lawyer’s responsibilities under the Rules of Professional Conduct, but does not opine as to criminal or civil liability.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.