united-states criminal-law england-and-wales attorney-client-privilege law-in-fiction
A Lawyer recieves an unintended letter from a client. Is it privileged?
<p>This is based on a situation in a mystery novel. In the novel a lawyer receives an envelope addressed to him by a client, in the client's handwriting, which the lawyer knows well. But the letter inside is not addressed to the lawyer, or indeed to anyone. Enclosed are sheets of paper with a watermark of the sort used in printing paper money, strongly suggesting a counterfeiting operation. The unaddressed and unsigned note is consistent with the idea of a counterfeiting operation. The note is also in the client's distinctive handwriting.</p>
<p>The lawyer assumes that the contents of the envelope were placed there by a mistake of the client, and were intended to be sent to a confederate of the client in this illegal scheme. He further assumes that a letter intended for the lawyer was sent to the confederate.</p>
<p>The lawyer had not previously known or suspected that the client was engaged in forgery or any unlawful activity.</p>
<p>The lawyer decides to treat this as a confidential and privileged matter. But the narrator remarks that he is obviously wrong to do so. One passage reads:</p>
<blockquote>
<p>The obvious inference was that the letter which had come to Penfield [the lawyer] contained incriminating matter. That would explain everything. For if Penfield had thus stumbled on evidence of a crime, either committed or contemplated, he would have to choose between denouncing the criminal or keeping the matter to himself. But he was not entitled to keep it to himself; for, other considerations apart, this was not properly a client's secret. It had not been communicated to him: he had discovered it by accident. He was therefore not bound to secrecy, and he could not, consequently, claim a lawyer's privilege. In short, if he had discovered a crime and chose to suppress his discovery, he was, in effect, an accessory, before or after the fact, as the case might be; and he would necessarily keep the secret because he would not dare to divulge it.</p>
</blockquote>
<p>(Source: Chapter IV of <em>The Shadow of the Wolf</em> by R. Austin Freeman, first published in 1925, and now out of copyright. Freeman died in 1943. See <a href="http://gutenberg.net.au/ebooks05/0500491h.html" rel="nofollow noreferrer">http://gutenberg.net.au/ebooks05/0500491h.html</a>)</p>
<p>The novel is set in England, roughly in 1925.</p>
<p>My question is, would the contents of the envelope be considered privileged? Would the lawyer be required to divulge it if asked by the police or in a court? Would he be required to report the matter to the police on his own? What difference, if any does it make that the client apparently did not intend to send these contents to the lawyer? Are the answers different in 1925 England, 1925 US (say New York) 2020 England, or 2020 New York?</p>
<p>I know that a lawyer cannot regard as privileged advice on how to commit a crime, or plans for a future crime. I understand that a statement by a client that the client has committed a crime in the past is privileged. But what about this sort of unintended disclosure by the client?</p>

<p><a href="/questions/tagged/england-and-wales" class="post-tag" title="show questions tagged &#39;england-and-wales&#39;" rel="tag">england-and-wales</a> - present day...</p>
<p><strong>Would the contents of the envelope be considered privileged?</strong></p>
<p><strong>No</strong>  Although it is possible to argue that the letter is a communication to the lawyer (albeit by mistake) its purpose is not in relation to seeking or receiving legal advice, so it fails to meet the definition of legal privilege:</p>
<p><a href="https://en.m.wikipedia.org/wiki/Legal_professional_privilege_in_England_and_Wales" rel="noreferrer">There are two forms of legal professional privilege</a>:</p>
<blockquote>
<ul>
<li><p>Legal advice privilege protects confidential communications between lawyers and their clients for the purposes of giving or obtaining legal advice.</p>
</li>
<li><p>Litigation privilege protects confidential communications between lawyers, clients and third parties made for the purposes of litigation, either actual or contemplated.</p>
</li>
</ul>
</blockquote>
<p><strong>Would the lawyer be required to divulge it if asked by the police or in a court?</strong></p>
<p><strong>Yes, No, Maybe</strong>  If the lawyer is a suspect/defendant then there is no requirement to answer any questions whatsoever.  Similarly, there is no obligation on a witness to answer questions unless a statutory provision has been triggered, such as the lawyer being given a  Serious Organised Crime and Police Act 2005 <a href="https://www.legislation.gov.uk/ukpga/2005/15/part/2/chapter/1/crossheading/disclosure-notices?timeline=false" rel="noreferrer">Disclosure Notice</a>.</p>
<p><strong>Would he be required to report the matter to the police on his own?</strong></p>
<p><strong>Yes</strong>  Although there is no general requirement to report a crime (of this nature) to the police, the lawyer's profession is in the &quot;regulated sector&quot; which requires <a href="https://www.nationalcrimeagency.gov.uk/what-we-do/crime-threats/money-laundering-and-illicit-finance/suspicious-activity-reports" rel="noreferrer">Suspicious Activity Reports</a> to be submitted to the authorities:</p>
<blockquote>
<p>... in respect of information that comes to them in the course of their business if they know, or suspect or have reasonable grounds for knowing or suspecting, that a person is engaged in, or attempting, <a href="https://www.legislation.gov.uk/ukpga/2002/29/part/7/crossheading/offences?timeline=false" rel="noreferrer">money laundering</a>...</p>
</blockquote>
<p><strong>What difference, if any does it make that the client apparently did not intend to send these contents to the lawyer?</strong></p>
<p><strong>None</strong> that I can see</p>
<hr />
<p><strong>ETA</strong> The status of legal privilege in 1925 seems to have been the same as now, and this <a href="https://en.wikipedia.org/wiki/Legal_professional_privilege" rel="noreferrer">Wikipedia</a>
article, under the heading <em>History</em> offers this in support:</p>
<blockquote>
<p>The common law principle of legal professional privilege is of extremely long standing. The earliest recorded instance of the principle in English case-law dates from 1577 in the case of <a href="https://www.swarb.co.uk/berd-v-lovelace-1576/amp/" rel="noreferrer">Berd v Lovelace</a> (<em>[1576] EngR 10 (&amp; Ors)</em>)</p>
</blockquote>

<blockquote>
<p>Are the answers different in . . . 2020 New York?</p>
</blockquote>
<p><strong>Short Answer</strong></p>
<p>There would be no duty (or right of an attorney) to proactively disclose this material under modern U.S. law, and it would probably be protected by the attorney-client privilege as well.</p>
<p><strong>Long Answer</strong></p>
<p>There are a few issues presented:</p>
<ol>
<li><strong>Does the lawyer's ethical duty of confidentiality require or allow disclosure (without regard to the existence of a privilege), before considering its contents, under U.S. law?</strong></li>
</ol>
<p>Disclosure is not allowed unless the crime-fraud exception applies.</p>
<p>U.S. lawyers are not permitted to disclose any information obtained about their clients except (1) in furtherance of their representation of their clients, (2) with client's informed consent, or (3) when an exception applies. Disclosure would not be in furtherance of the representation of the client and would not be with client permission. So, it is only allowed if an exception applies, and the crime-fraud exception is the only exception that could plausibly apply in this situation.</p>
<ol start="2">
<li><strong>Is the material protected by the attorney-client privilege in the first instance before considering is contents under U.S. law?</strong></li>
</ol>
<p>Probably.</p>
<p>Normally, confidential communications between an attorney and a client are protected by the attorney-client privilege and this varies slightly from jurisdiction to jurisdiction in the U.S. but is largely uniform.
This was a communication between an attorney and a client, whether or not it was initially intended to be one, and it appears to have been made confidentially. So, absent a good reason to the contrary, the communication is privileged.</p>
<p>At least in practice, the requirement that a confidential communication between an attorney and client have a particular purpose related to a legal representation is not as strictly enforced, to the extent it is recognized as existing at all. In part, this is because applying such a requirement would require courts to delve into the content of possibly privileged communications and thereby defeating the purpose of the privilege.</p>
<p>In the same vein, the intent of the client is, at best, inferential and supposition, and in the spirit of the strong protection given to the attorney-client privilege, the client should be given the benefit of the doubt, until any possible basis for the privilege to apply is fully dispelled.</p>
<ol start="3">
<li><strong>Does the crime-fraud exception to the ethical duty of confidentiality and the attorney-client privilege respectively, apply, under U.S. law?</strong></li>
</ol>
<p>No.</p>
<p>The attorney-client privilege and the ethical duty of an attorney to keep client matters confidential (which is broader than the privilege itself) each have a &quot;crime-fraud&quot; exception. There is material variation in the scope of the &quot;crime-fraud&quot; exception from one state to another from the model version that can be important in edge cases. But the standard version of <a href="https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_1_6_confidentiality_of_information/" rel="nofollow noreferrer">Model Rule of Professional Conduct 1.6(b)(3) and (4)</a> (adopted in some form in every U.S. jurisdiction) containing the crime-fraud exceptions to the confidentiality rule is adopted in the majority of U.S. jurisdictions and sufficient for this analysis, and states:</p>
<blockquote>
<p>b) A lawyer may reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary: . . .</p>
<p>(2) to prevent the client from committing a crime or fraud that is
reasonably certain to result in substantial injury to the financial
interests or property of another and in furtherance of which the
client has used or is using the lawyer's services;</p>
<p>(3) to prevent, mitigate or rectify substantial injury to the
financial interests or property of another that is reasonably certain
to result or has resulted from the client's commission of a crime or
fraud in furtherance of which the client has used the lawyer's
services;</p>
</blockquote>
<p>Since the crime or fraud of the client about which the lawyer might have knowledge is not one &quot;in furtherance of which the client has used the lawyer's services&quot; (at least so far as the OP discloses), the crime-fraud exception does not apply. (Incidentally, this &quot;used the lawyer's services&quot; limitation does not apply to disclosures that could prevent death or serious bodily injury.)</p>

<p><strong>1925 England</strong></p>
<p>The general rule in England and Wales is that there is no legal (as distinct from moral) duty on anyone to to report a crime. There are exceptions to this particularly in recent decades in respect of terrorism and money laundering, but in 1925 England, as far as I know, the lawyer would have been committing no crime if they did <strong>not</strong> report the matter to the police even assuming the matter was not covered by privilege.</p>
<p>But the fictional lawyer has a problem about what to do with the watermarked paper. If he gives it back to the client then he might be participating in a crime.</p>
