I have heard a lot about lawyers being scammed by individuals allegedly seeking legal services who then send bogus checks to the lawyer. Is information from these individuals confidential or can we discuss it with law enforcement officers?
While there is no single, clear answer to your question, in the majority of instances the information you obtain from someone who is trying to scam you would not be considered confidential.
I have written before about the breadth of the confidentiality rule and the requirement that lawyers understand that anything they learn during the course of representation should be considered confidential. This is because of the wording of SCR 20:1.6 (on confidentiality), which clearly states that any information learned during the course of representation should be confidential as it relates to the lawyer. There are also confidentiality requirements for prospective clients in SCR 20:1.18, which holds that a lawyer may not release confidential information learned during a discussion between the lawyer and a prospective client if the information could be harmful to the client.
These rules and the confidentiality requirement assume that there is a lawyer-client relationship or a prospective lawyer-client relationship. In situations in which someone contacts the lawyer and actually is trying to trick the lawyer into distributing funds that are not properly accounted for, the logical conclusion is that the person contacting the lawyer was not looking to engage in a lawyer-client relationship.
Rather, the individual was trying to use the lawyer’s services to obtain funds through the use of a bogus check or other fraudulent arrangement. Lawyers must be careful, because initially it might not be clear that the communication from a prospective client is really an effort to scam the lawyer and somehow obtain funds from a bogus transaction.
An opinion from the New York State Bar Association acknowledges that a lawyer-client relationship is not established in those instances in which an individual is communicating with the attorney for the purpose of defrauding the attorney and not for the purpose of obtaining legitimate legal services from the attorney. The opinion also acknowledges that this is a factual determination that must be made by the lawyer and that it depends on the specific facts. The conclusion from the opinion summarizes the options available to a lawyer once he or she has concluded that the communication is not for the purpose of obtaining legal services:
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“A person who communicates with a lawyer seemingly for the purpose of forming a relationship to obtain legal services is presumptively a ‘prospective client’ entitled to protections of confidentiality under the Rules. However, if the purported prospective client is actually seeking to defraud the lawyer rather than to obtain legal services, then the person is neither an actual nor a prospective client and is not entitled to these confidentiality protections. In that case, the inquiring attorney may report the scheme to affected banks or law enforcement authorities, and may supply information and documents to those investigating the scheme, without violating any duty of confidentiality that would be owed to persons genuinely seeking legal services.”
There has been a significant growth in these type of scam activities as lawyers engage in a multijurisdictional or multinational practice of law. Lawyers should be very careful about these unsolicited contacts that suggest a need for lawyer services for the purpose of obtaining funds or advancing funds through use of the lawyer’s accounts.