The simple background is that someone has misspent some money that they weren't really authorized for. We are gearing up and may soon be plaintiffs and this person will become a defendant.

The question concerns what our attorney is obligated to do or not do if he/she draws an educated and experienced conclusion that the behavior of the defendant in relation to what they did, is criminal. (we will say non-violent and nobody is in danger of harm). Does our attorney have an obligation to contact law enforcement, or is the attorney obligated not to legally? Or is there an ethics rule about what an attorney should do in this type of situation?

The likely venue is California.

Bonus question if you might be so inclined, same question, replace attorney with a judge. Hopefully, we will never hit court but you never know.


Attorney client privilege would mean that the your attorney is not allowed to discuss anything you say to him/her with anyone else without your specific authorization to discuss that topic (with limited reason. Your lawyer may not discuss you revealing to him you committed a crime with anyone else, unless you discuss further committing that crime. I.E. You're a mob boss and tell your attorney that the police are right and you did order the unsucessful hit on "Little Paulie". Your attorney will not be allowed to discuss this with anyone unless you tell him. If you then turn to your top enforcer and tell him to get someone competent to kill Paulie while your lawyer is in the room, then he can go to the police.).

Your Lawyer may advise making a criminal complaint, and will even assist in doing it in such a way that legally protects you... but you do not have to take him up on the matter and ignore his advice. Ethically, he's going to do his best to persue the matter in the manner you want.

As for the Judge, this matter is likely to not come up until after the judge concludes the case before him (he may make remarks to effect that recommend filing a criminal complaint but again, he's not going to do it for you. The good news on the criminal complaint is that the state (either California or the U.S. Federal Government) will be handling the "plaintiff" side of the matter, while you will merely be a witness they may or may not call. You pay for this every April 15th when you pay your taxes.

In terms of success, if you go to trial, depends on the matter too. In civil courts, you need to prove that your story is the more likely of the two stories to have occured, while in Criminal Courts, you have to prove that your story is 100% what happened and there's no way it could be different (both may never see the inside of the court because of settlements being made before the Jury decides the civil case, and plea bargaining and Prosecutorial discretion being very common (something like 90% of all criminal cases never get heard by a jury).

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