Legal malpractice Claimed Where Attorney Acts as Confidential Informant in Criminal Case

This case involves an attorney who acted as an informant for the FBI and gave the government information revealed to him by a former client. The client was appealing a conviction for several criminal offenses. The attorney had represented the client in the past in both civil and criminal matters. The client had retained another attorney to represent him in his appeal of a current criminal conviction because the attorney had a conflict of interest in the current case. Even though the client had acquired another lawyer, the attorney arranged for the client to get out of jail on bail in the current case and the client discussed trial strategy and tactics with the attorney. The attorney later relayed this information to the FBI. The client appealed his criminal conviction on the grounds that he had an attorney-client relationship and the attorney had breached his ethical duty to him by revealing privileged information to the FBI.

Question(s) For Expert Witness

1. Is it malpractice for an attorney to serve as an informant to the government in a criminal case and reveal information that a former client told him?

Expert Witness Response

When an attorney-client relationship exists, the attorney is bound by the Rules of Professional Conduct that requires that the attorney protects a client’s confidential and secret information. Under RPC 1.6, an attorney must not divulge matters communicated to them in confidence by a client or information relating to the representation of a client. Matters which are considered “secret” include any matters that if disclosed would affect the client adversely. In this case, the former client’s discussion of trial strategies and trial tactics with the attorney probably involves a matter that is considered confidential and secret under the Rules of Professional Conduct. Another question raised by this case is whether the client and the attorney still had an attorney-client relationship. Even though the attorney was not representing the client in the current criminal trial, the client had a long-standing relationship with the attorney where he sought legal advice and assistance. The client and the attorney probably had an attorney-client relationship because this type of relationship can be formed implicitly. When there is an implied attorney-client relationship, all communications between the attorney and the client are privileged under the Rules of Professional Conduct if they concern legal advice sought from the attorney in their capacity as a legal professional. The attorney in this case probably violated the Rules of Professional Conduct by revealing privileged information that his former client had told him to the FBI.