Apparently my choice of words confused some readers when I wrote that once “The Ethicist’s” inquirer in this post was made aware of a serious fraud (and an ongoing one) perpetrated by a close friend, she had become an accessory after the fact. That’s a legal term of art and I was careless to use it in nontechnical context. Almost no one is ever charged as an accessory for not blowing the metaphorical whistle, but the woman nonetheless shared responsibility for the harm done by the ongoing fraud by knowing about it, having the ability to stop it, and not doing so, thus letting it continue.

The duty she breached was an ethical one, not a legal one. As I said, I should have been clearer.

I am reminded of a personal experience that might clarify the issue further. I may have even related this story in another post; if so, I can’t find it, and it is worth repeating.

A lawyer friend contacted me for advice. He had been meeting with a client at the client’s home, and overheard, in the kitchen, a loud argument between his client and his wife culminating in what sounded like a hard punch in the face, the woman crying out in pain, and someone falling on the floor. My friend said he had said nothing, but was increasingly bothered by what he heard.

He knew that he not only had no legal duty to report the suspected domestic abuse to authorities, and that what had occurred was a confidence or “secret” under the Rules of Professional Conduct governing D.C lawyers, since he had acquired the information in the course of his representation. I told him, and he agreed, that he couldn’t speak with the wife or give her advice regarding the abuse; that would create a conflict of interest with his representation of her husband, and directly violate D.C. Rule 1.3, forbidding a lawyer from taking any action that could “prejudice or damage” a client during a representation. The so -called “death exception” to the confidentiality requirement was also not available to him; that holds that a lawyer may reveal a confidence to “prevent a criminal act” that would cause “death or serious bodily injury,” but he did not have sufficient evidence to know that a criminal act would occur without his intervention.

I told him, however, that one of my ethics mottos was “Fix the problem.” If, I asked, he did nothing and his client beat his wife to death in a month, would be feel responsible? He said he would, and I agreed that he would be partially responsible.

One course of action would be to tell authorities anyway, and hope that the bar disciplinary committee would sympathize. Another would be to do nothing and hope for the best. That would be the “book” response, legally acceptable and compliant with the ethics rules.

A couple of weeks later, my friend called me to say, “Well, I fixed the problem.”

He said that he had another meeting at his client’s home, and he thought the wife’s face looked bruised. She also appeared to be intimidated in his client’s presence. At a subsequent meeting that same week at his law office, my friend said that he confronted his client and pushed him against the wall. “I think you’re beating your wife,” he said. “Now, I’m handing you a card with the number of a counselor on it. You’re going to call it, and you’re going to get counseling with your wife. I’ll pay the bills. But you’re never going to lay a hand on her in anger again, and if I find out that you have, I will beat the living daylights out of you, and I don’t care if I get locked up or lose my law license. Is that clear?”

Apparently the threat was convincing (my friend is large and fairly scary), because the guy did go through with the counseling, kept my friend as his lawyer, and there was no more evidence of abuse. (His wife divorced him anyway, but that’s irrelevant.) There was no legal or professional obligation for my friend to take action to stop the abuse, but there were clear ethical, societal and human duties to do so.

I wouldn’t have advised him to handle it the way he did, but…he fixed the problem.