Disclosing client confidences or secrets in defense of a bar complaint
By Scott Morrill
DR 4-101 prohibited a lawyer from knowingly revealing a client’s confidences or secrets.1 The recently adopted Oregon Rules of Professional Conduct (Oregon RPC) 1.6 does the same thing.2 However, a more difficult question is what may a lawyer disclose when a bar complaint has been made by the lawyer’s own client? More importantly, what may a lawyer disclose when a bar complaint has been made by someone other than the lawyer’s client? This column explores the tension between the rule prohibiting the disclosure of confidences or secrets and the ability to defend against a complaint.
First, what is a client confidence or secret? A confidence refers to information protected by the lawyer-client privilege under applicable law. Applicable law in Oregon is OEC 503(1)(b), which defines confidential communication as "a communication not intended to be disclosed to third persons other than those to whom disclosure is in furtherance of the rendition of professional legal services of the client or those reasonably necessary for the transmission of the communication." Generally speaking this means that the communication is only a confidence when it is between the lawyer and the client (or the lawyer’s representative and the client’s representative) for purposes of obtaining legal advice. State v. Jancsek, 302 Or 270, 275-276, 730 P2d 14 (1986).
A secret includes all information a lawyer learns during the lawyer-client relationship if the client has requested that the information be kept secret or if disclosure of the information would embarrass or be detrimental to the client. A secret may include information that the lawyer learns from someone other than the client. See, The Ethical Oregon Lawyer, Sec. 6.5 The duty to preserve both confidences and secrets does not end. OSB Legal Ethics Op No 1991-23. Secrets are arguably a much larger category of information than confidences.
Oregon RPC 1.6(b)(4) would appear to answer the first question. It allows a lawyer to reveal confidences or secrets necessary to establish a defense on behalf of a lawyer in a controversy between the lawyer and the client or to respond to allegations concerning the lawyer’s representation of the client. If your client complains to the bar, you may reveal confidences and secrets to the extent necessary to defend yourself. However, you may not reveal more than what is necessary. For example, if your client has accused you of neglecting a business law matter, it is probably not necessary to reveal to the bar that your client is having an affair with his secretary. That information does not relate to the complaint. However, if your client has accused you of neglecting a business law matter, it probably is relevant to explain that your client has made it difficult for you to attend to the matter because he has not provided current financial statements. The ABA comment to the Model Rules, which the Oregon RPC is based on, provides for this same result. See, Model Rules of Professional Conduct, 2004 edition, ABA at 25. While Oregon did not adopt the comments, they may be helpful in providing guidance to practitioners.
Oregon RPC 1.6(b)(4) is not so clear if someone other than a lawyer’s client files a complaint. However, case law and commentaries do allow lawyers to defend themselves. In a case decided under the former DR 4-101 the court held that when a lawyer is accused of unethical conduct by someone other than the lawyer’s client and the client has not consented to disclosure of confidential information, the lawyer may nevertheless make the disclosures necessary to defend against the allegations. In re Robeson, 293 Or 610, 652 P2d 336 (1982). There is no reason to think that the Oregon Supreme Court would decide this question any differently under Oregon RPC 1.6(b)(4).
Again, the comments to the ABA Model Rules say that where a disciplinary complaint has been made by any party that alleges complicity by a lawyer in misconduct or that directly involves a lawyer’s conduct, the lawyer may respond to the extent the lawyer reasonably believes is necessary to establish a defense. Even before a third party makes a formal complaint to the bar, the lawyer may respond directly to the complaining party and disclose client confidences or secrets to the extent necessary to defend.
A related issue is what a lawyer can disclose in motions to the court to withdraw from representing a client. Many lawyers determine that they must withdraw when the relationship between them and their client becomes untenable. This may arise when a client is not paying a lawyer’s fees, refuses to take the lawyer’s advice or has become too demanding to continue working with. Arguably these situations may give rise to a belief by a lawyer that there is a controversy between him and his client giving the lawyer the right to disclose confidences or secrets. However, the client may not share the lawyer’s feeling that any controversy exists and could object to any disclosures.
If you are in a jurisdiction where the court requires pretty specific reasons to allow you to withdraw, and you are concerned that you may have to disclose a client confidence or secret to convince the court, there is another option. You may submit your motion and supporting affidavit under seal. The Ethical Oregon Lawyer, Form 4.2, p. 4-20. While this option presents other problems, such as the consent by opposing counsel and the court, it is an option to consider when you have a touchy situation.
Finally, there do not appear to be any significant differences between DR 4-101 and Oregon RPC 1.6 when it comes to the issue of what a lawyer can disclose to defend against a bar complaint. However, the issue is one that the bar’s Client Assistance Office deals with often. We received nearly 40 complaints related to the disclosure of confidences and secrets in 2004 and have fielded calls from both clients and lawyers with questions about this issue. Tread lightly and guard your clients’ secrets and confidences zealously to avoid complaints. However, be prepared to defend yourself if your client or third parties file a complaint.
ENDNOTES
1. DR 4-101 Preservation of Confidences and Secrets of a Client
"Confidence" refers to information protected by the lawyer-client privilege under applicable law, and "secret" refers to other information gained in a current or former professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
Reveal a confidence or secret of the lawyer’s client.
Use a confidence or secret of the lawyer’s client to the disadvantage of the client.
Use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.
A lawyer may reveal:
Confidences or secrets with the consent of the client or clients affected, but only after full disclosure to the client or clients.
Confidences or secrets when permitted by a Disciplinary Rule or required by law or court order or secrets which the lawyer reasonably believes need to be revealed to effectively represent the client.
The intention of the lawyer’s client to commit a crime and the information necessary to prevent the crime.
Confidences or secrets necessary to establish a claim or defense on behalf of a 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 concerning the lawyer’s representation of the client.
The following information in discussions preliminary to the sale of a law practice under DR 2-111 with respect to each client potentially subject to the transfer: the client’s identity; the identities of any adverse parties; the nature and extent of the legal services involved; and fee and payment information. A potential purchasing lawyer shall have the same responsibilities as the selling lawyer to preserve confidences and secrets of such clients whether or not the sale of the practice closes or the client ultimately consents to representation by the purchasing lawyer.
A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilize by the lawyer in connection with the performance of legal services from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101(C) through an employee.
2. Rule 1.6 Confidentiality of Information
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).
(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to disclose the intention of the lawyer’s client to commit a crime and the information necessary to prevent the crime;
(2) to prevent reasonably certain death or substantial bodily harm;
(3) to secure legal advice about the lawyer’s compliance with these Rules;
(4) 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;
(5) to comply with other law, court order, or as permitted by these Rules; or
(6) to provide the following information in discussions preliminary to the sale of a law practice under Rule 1.17 with respect to each client potentially subject to the transfer: the client’s identity; the identities of any adverse parties; the nature and extent of the legal services involved; and fee and payment information. A potential purchasing lawyer shall have the same responsibilities as the selling lawyer to preserve confidences and secrets of such clients whether or not the sale of the practice closes or the client ultimately consents to representation by the purchasing lawyer.
© 2005 Scott Morrill
ABOUT THE AUTHOR
Scott Morrill is assistant general counsel
for the Oregon State Bar. He can be reached by telephone
at (503) 620-0222 or (toll-free in Oregon) at (800)
452-8260, ext. 344. He can also be reached by e-mail
at smorrill@ osbar.org.