Misprision of Felony—Lawyer Sentenced

The oldest of the privileges for confidential communications known to the common law is the attorney-client privilege, and its purpose “is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.”^[1] This privilege, however, is not absolute. As Rule 1.6 of the Model Rules of Professional Conduct states, a lawyer may reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

1. to prevent reasonably certain death or substantial bodily harm;
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; or
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.

Notice how the Rule states “may,” but not “must.” The “must” is becoming enforced through criminal prosecutions for misprision of felony, such as the case involving New Orleans lawyer John S. Keller.

Mr. Keller pleaded guilty last year to misprision of felony “for his role in a scheme to swindle more than $500,000 from the Regional Transit Authority.”^[2] Any person who has knowledge of the actual commission of a felony, conceals, and does not as soon as possible make the commission known to a judge or other authority, is guilty of misprision of felony and can be fined up to $250,000, imprisoned for up to three years, or both.^[3] Mr. Keller was sentenced to three years of probation, 200 hours of community service, ordered to make restitution of $10,000, and fined $5,000.^[4]

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[1] Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
[2] Frank Donze, Lawyer Sentenced in RTA Plot, Times-Picayune, Sep. 28, 2006.
[3] 18 U.S.C. § 4.
[4] Donze, supra note 2.