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OBA Ethics Counsel

Ethics Opinion No. 136

Adopted September 17, 1937

The Board is in receipt of the following inquiry from an office of the Treasury Department:

"A client called at the office of his attorney and asked for information relative to existing Customs Regulations pertaining to seized and forfeited articles, and as to whether or not the statutes of limitations operated with respect to imported articles subject to seizure. The client claiming that at some time in the past he had purchased from an individual, for which seemed to be a very nominal price, a piece of jewelry. Subsequent happenings (the seller of the article of jewelry being accosted by customs officers who found other articles of jewelry on his person which had been smuggled into the United States) caused the buyer (the client) to suspect that the article he had purchased was also smuggled into the United States.

The attorney had his associate call at this office in connection with Customs Regulations and laws relating to smuggled articles and articles subject to forfeiture for illegal entry. A report was made by this office to The Collector of Customs who in turn forwarded the report to the Supervising Customs Agent, Chicago, Illinois, for such action he deemed appropriate and advisable.

The Supervising Customs Agent, being unable to find the attorney mentioned above in the city during any of his visits to this city, requested this office to secure such other information from the attorney relative to the identity of the client and the possible time of the purchase of the article of jewelry and other information which would enable that officer to complete his investigation. A few days ago the writer called on the attorney in accordance with the request of the Supervising Customs Agent and was refused any further and additional information by the attorney; the reason being given that it would violate the client's confidence with his attorney and that the interview was considered a privileged communication.

In connection with the foregoing the question is: Could the attorney divulge the name of his client, the information so given to be used by the Supervising Customs Agent, without violating the confidence of attorney and client; and is the interview between the client and attorney, as given in the foregoing, privileged communication?"

In response:

From the statement of facts it cannot be assumed that, at the conference detailed, the client of the member of the bar disclosed to him an "announced intention ... to commit a crime" (Rule 39, Rules of Professional Conduct). For aught that appears, the client, even though he had cause to believe that the article which he had purchased had been smuggled, was seeking information as to what, under the circumstances, his duties to his government were, and as to what his legal rights were under the existing facts. Thus may be presented a situation entirely at variance with the supposition that the client intended, in the future, to commit a crime and that he informed the member of the bar of his intention to do so.

In the opinion of the Board the member of the bar in question was in the performance of his professional duty to his client when he refused to disclose his name to the customers' representative.