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Commonwealth of Massachusetts

September 2003

When Your Client Sues You, Are Your Lips Still Sealed?

Dorothy Anderson, Assistant Bar Counsel

Attorneys are required to keep confidential virtually everything relating to the representation of a client. Mass. R. Prof. C. 1.6. But must an attorney maintain confidentiality in a fee dispute with a client, or if the client has accused the attorney of ineffective assistance of counsel, malpractice or misconduct? Mass. R. Prof. C. 1.6(b)(2) creates an exception to the confidentiality rule, permitting limited revelation of confidential information in these circumstances. Attorneys should be aware, however, that the exception will be construed narrowly and that it never provides carte blanche for the revelation of confidential information.

Mass. R. Prof. C. 1.6(b)(2), permits an attorney to reveal confidential information: “to the extent the lawyer reasonably believes necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” The implementation of that rule, on January 1, 1998, broadened the circumstances under which an attorney may reveal confidential client information. The former disciplinary rule, Canon 4, DR 4-101 (C)(4), only permitted at attorney to disclose confidential information “necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.”

Thus, one substantial change is that the current rule allows an attorney to disclose confidential information to “establish a claim” in circumstances other than fee collection. Claims by an attorney against a client might include a claim to recover property from a client (see In re Amendment of Model Rules of Professional Conduct, 295 Ark. 702 (1988), or a third-party claim against a client, for instance where another party has sued the attorney to recover funds that the attorney has paid to the client.

Rule 1.6(b)(2) also applies when in-house counsel sues a former employer/client for wrongful discharge. The revelation of confidential information is particularly relevant when the attorney claims that the discharge resulted from his or her objection to illegal conduct by the employer. In the case of GTE Products Corp v. Jefferson Davis Stewart, 421 Mass. 22 (1995), decided under the former disciplinary rules, the Supreme Judicial Court held that an in-house counsel could only pursue a wrongful discharge claim against his former employer/client if he could do so without revealing confidential information. The Court acknowledged, however, that adoption of Rule 1.6(b)(2) “might…affect the ability of in-house counsel to prove a claim of wrongful discharge.” Courts of other jurisdictions have held that rules identical to 1.6(b)(2) permitted in-house counsel to disclose confidential information reasonably necessary to establish a wrongful discharge claim. See, e.g., Crews v. Buckman Laboratories International, Inc. 78 S.W. 3d 852 (Tenn. 2002); Burkhart v. Semitool, Inc. 5 P. 3d 1030 (Mont. 2000).

Rule 1.6(b)(2) also allows an attorney to reveal confidential information when “responding to allegations in any proceeding concerning the lawyer’s representation of the client.” This exception applies when the attorney is not a party to the proceeding in which the allegations are made. For instance, other jurisdictions have ruled that an attorney may disclose confidential information to defend himself against a claim of ineffective assistance of counsel made by a former client in an appeal of a criminal conviction. See, e.g. Pieron v. State of Missouri, 793 S. W. 2d 618 (Mo. 1990); Petition of Thomas Dean, 711 A. 2d 257 (N.H. 1998). Presumably, the same reasoning would apply in a civil case. Thus, if a client accused prior counsel of inattention or neglect, for the purpose of obtaining some relief from a court or administrative body (e.g., a continuance or the vacating of a judgment of dismissal), the accused attorney would be permitted to reveal confidential information to the extent necessary to respond to those allegations. See Pa. Ethics Op. 96-48 (lawyer whose clients are defending against SEC investigation by asserting lawyer’s lack of due diligence may speak with SEC counsel and reveal information necessary to defend against allegations, although not himself named in complaint.)

To date, however, there are no Massachusetts decisions interpreting this provision of 1.6(b)(2). Thus, an attorney in this situation should be cautious not to gratuitously reveal confidential information merely to protect her own reputation. It would be prudent for an attorney to request a subpoena from the party seeking disclosure, as opposed to merely volunteering information, or to reveal the confidential information only in a court-supervised setting.

Although the current rule enlarges the scenarios in which an attorney is permitted to disclose confidential information, it raises questions about the timing, scope and manner in which disclosure is permissible. For instance, at what point in a “controversy” may an attorney reveal confidential information? How does an attorney determine what is “reasonably necessary”? How much information is “reasonably necessary” to prove entitlement to a fee? Are there restrictions in the procedure by which the confidential information may be disclosed?

Some of these questions are directly addressed in the “comments” to Rule 1.6. For instance, Comment 18 states that the lawyer’s right to respond arises when an assertion of wrongdoing is made: “Paragraph (b)(2) does not require the lawyer to await the commencement of an action or proceeding that charges such complicity, so that the defense may be established by responding directly to a third party who has made such an assertion.” The comment goes on to say that, “disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.” Some courts have been more specific in suggesting the utilization of protective measures, such as sealing of court documents, protective orders, limited admissibility of evidence, orders restricting the use of testimony in successive proceedings, and in camera proceedings. See, e.g. General Dynamics Corporation v. Superior Court, 876 P. 2d 487, 504 (Cal. 1994); Burkhart v. Semitool, Inc. 5 P. 3d at 1041.

As addressed in the comment, an attorney contemplating the disclosure of confidential information should consider how to limit the information revealed. If the disclosure will be contained in a pleading, is the disclosure a required element of the prima facie case, or defense? A complaint in a fee collection case, for example, need allege no more than that the attorney and client entered into an agreement, that the attorney performed legal work pursuant to the agreement, and that the client failed to pay. The attorney should not make additional disclosures until it becomes necessary to do so. The client’s history of not paying bills, or pattern of dishonesty, for instance, might eventually be relevant in contradicting a defense or for impeachment purposes at trial, but should not be disclosed in a civil complaint.

Another question worth asking oneself is whether the primary effect of the disclosure would be to embarrass the client or cast him or her in a bad light. Bar Counsel is likely to pursue discipline against attorneys who make disclosures of marginal relevance to their claim or defense, seemingly for the purpose of embarrassing a client. For example, an attorney’s revelation that a client had an alcohol problem, had been convicted of a crime, had been evicted from her residence, was in the process of a divorce, or was being pursued by creditors, would all be subject to scrutiny.

The use of the phrase “reasonably believes” establishes an objective test for determining whether a disclosure of confidential information made by an attorney to establish or defend a claim, is permissible. Consequently, an attorney may sincerely believe that a disclosure of confidential information is necessary, but will have violated Rule 1.6 if that belief is not reasonable. To avoid such an outcome, Bar Counsel advises attorneys to consider consulting with other attorneys or calling Bar Counsel’s ethical help-line before proceeding.

While Rule 1.6(b)(2) permits some disclosures of confidential information, it does not permit an attorney to threaten such disclosures. An attorney who threatens to disclose confidential information for the purpose of intimidating a client risks disciplinary action. See, e.g. In re Complaint as to the Conduct of Huffman, 983 P. 2d 534 (Ore, 1999) (attorney disciplined for disclosing confidential information to new counsel for former client in veiled attempt to embarrass former client and dissuade new counsel from pursuing claims against attorney); People v. Farrant, 852 P. 2d 452 (Colo. 1993) (lawyer suspended for threatening to disclose confidential information likely to result in criminal action against client.)

Questions under 1.6(b)(2), by their nature, are likely to arise when you become involved in a controversy with a client or an issue involving your representation of a client. But, keep in mind that preserving confidentiality must be an overriding consideration. Before you reveal confidential information, consider the time, place, and manner of the disclosure and reveal confidential information only to the extent truly necessary to the purpose of the disclosure.

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© 2003. Board of Bar Overseers. Office of Bar Counsel. All rights reserved.