Washington Lawyer

Speaking of Ethics March 2001: A Primer on Confidentiality, Part 2

From Washington Lawyer, March 2001

By Susan D. Gilbert

ethics

While protection of a client’s confidences and secrets is the basic premise of the lawyer–client relationship, it is a premise subject to limited exceptions found primarily in Rule 1.6(c) and (d) of the D.C. Rules of Professional Conduct. Although exceptions exist, they are narrowly construed. Furthermore, where there is a "colorable basis" for asserting that statements made to a lawyer are protected by the rules, "the lawyer must resolve the question . . . in favor of preserving the confidentiality of the disclosures." D.C. Bar Legal Ethics Comm. Op. 99 (1981); see also D.C. Bar Legal Ethics Comm. Op. 186 (1987). A lawyer faced with an issue involving disclosure of client confidences or secrets is well advised to review the rule and its accompanying commentary. As the title states, this article is but a starting point.

Rule 1.6(c) permits a lawyer to reveal certain criminal and other acts that a client is contemplating if necessary to prevent their occurrence. Specifically, "a lawyer may reveal client confidences and secrets, to the extent reasonably necessary" (1) to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent the lawyer’s disclosure, or (2) to prevent bribery or intimidation of witnesses, jurors, court officials, or other persons in proceedings before a tribunal if the lawyer believes disclosure will prevent the act (emphasis added).

To date, the D.C. Bar Legal Ethics Committee has not issued an opinion construing Rule 1.6(c). It is noted, however, that the "death or substantial bodily harm" requirement of subsection (1) is similar to its American Bar Association (ABA) model rule counterpart. In addition, Rule 1.6(c) does not permit revelation of a client’s intent "to commit a crime," as was permitted by the former Code of Professional Responsibility. Its reach does not extend to disclosure of criminal acts beyond those stated in the rule, including disclosures necessary to prevent financial loss to third parties—a proposal once hotly debated by the ABA House of Delegates that was ultimately defeated by that body and rejected as well by the drafters of the D.C. rules.

Comment [19] to Rule 1.6, however, permits a lawyer to disavow certain documents upon his or her withdrawal: "[T]he lawyer may retract or disaffirm any opinion, document, affirmation, or the like that contains a material misrepresentation by the lawyer that the lawyer reasonably believes will be relied upon by others to their detriment." This so-called noisy withdrawal allows the lawyer "to signal that a problem exists by disaffirming earlier written statements but only if there is a reasonable basis to expect that future harm may occur without such disavowal." D.C. Bar Legal Ethics Comm. Op. 298 (2000) (emphasis added).

In addition to the disclosures permitted by Rule 1.6(c), a lawyer, under Rule 1.6(d), may use or reveal client confidences or secrets (1) with client consent; (2) when permitted by the rules, or authorized by law or court order, or when a government lawyer is permitted or authorized by law; (3) to defend against charges of wrongdoing that have been formally instituted against the lawyer; (4) when impliedly authorized by a client; or (5) in an action instituted by the lawyer to collect fees.

The first exception, disclosure with client consent, requires "full disclosure to the client regarding the proposed use of the information" and the lawyer must obtain "the client’s affirmative consent to the use in question." Rule 1.6, Comment [8]. The related "impliedly authorized disclosure" language of Rule 1.6(d)(4) permits the lawyer to use or reveal client confidences or secrets when the lawyer has "reasonable grounds" to believe the authorization. "[I]mplied consent is limited to situations in which disclosure is essential to the purpose of the representation." D.C. Bar Legal Ethics Comm. Op. 290 (1999). Comments [9] through [11] to the rule also provide useful guidance to the practitioner when determining whether consent can be implied, whether consent is required if additional counsel is brought in, and disclosures that are proper for administrative purposes.

One might think that disclosure of protected information in response to a subpoena or court order, permitted under Rule 1.6(d)(2)(A), is readily permitted, but reality is somewhat different. Elaborating on the rule, Comment [26] states that a lawyer may comply with "final orders of a court or other tribunal of competent jurisdiction," but the lawyer "should not comply with the order" until the lawyer has made "every reasonable effort to appeal the order or has notified the client of the order and given the client the opportunity to challenge it" (emphasis added).

Given the requirement of a final court order, what happens when a lawyer is confronted with a subpoena or administrative summons that requires the lawyer to produce protected information? The Legal Ethics Committee has addressed this issue in a number of opinions, finding that although a lawyer cannot "voluntarily accede" to such requests, the lawyer also is not obliged to be held in contempt of court because the client seeks nondisclosure. D.C. Bar Legal Ethics Comm. Ops. 288 (1999), 214 (1990), 83 (undated); see also D.C. Bar Legal Ethics Comm. Ops. 180 (1987), 124 (1983), 99 (1981), 14 (1976). Rather, the lawyer’s duty in this situation is to object to disclosure of protected information until confronted with a final judicial order that mandates disclosure. At that point, the lawyer may comply with the order, "but only after giving [the] client notice of the court’s order and a reasonable opportunity to seek review" of the order by independent counsel. D.C. Bar Legal Ethics Comm. Op. 214 (1990).

Life can be equally difficult for the lawyer who is served with a congressional subcommittee subpoena directing production of files that contain client confidences or secrets. The Legal Ethics Committee addressed this situation in Opinion 288 and concluded that a lawyer has "a professional responsibility to seek to quash or limit the subpoena, on all available, legitimate grounds." If, however, the congressional subcommittee that issued the subpoena overrules the lawyer’s objections and threatens to hold the lawyer in contempt, the "required by law" standard of Rule 16(d)(2)(A) is satisfied, and the lawyer may make the requested disclosures. The opinion also suggests, as an option, that the lawyer advise the client to employ separate counsel to seek a court order enjoining the subpoenaed lawyer’s compliance with the subpoena.

The self-defense provision of Rule 1.6(d)(3) actually addresses two situations and, in both instances, limits the lawyer’s disclosure of confidences and secrets to "the extent reasonably necessary" to defend against the charge. Allegations against a lawyer by a third party must be "formally instituted" and based upon conduct in which the client was involved. Comment [22] clarifies that informal allegations of third parties are insufficient to invoke the exception. Where, however, the client or former client has made "specific allegations" concerning the lawyer’s representation, the lawyer "may disclose that client’s confidences and secrets in establishing a defense, without waiting for formal proceedings to be commenced." Comment [23]. The comment underscores that, in both instances, the lawyer must not disclose information beyond that which is reasonably necessary or to persons beyond those who need to know, and it encourages a lawyer to seek protective orders "to the fullest extent practicable."

Fee disputes, rarely pleasant, are the final exception to be covered. Disclosures in this instance are restricted to the "minimum extent necessary in an action instituted by the lawyer to establish or collect the lawyer’s fee." Comments [24] and [25] amplify this provision and caution that it should be construed narrowly. Devices like John Doe pleadings, in camera proceedings, and protective orders are identified in Opinion 236 (1993) as a means to narrow disclosure. As the committee warned, the lawyer "must have a good faith expectation of recovering more than a de minimis amount of the outstanding fee," and the disclosure of confidences and secrets must not be for any other reason, such as bringing to light a potential fraud.

Ethics counsel Susan D. Gilbert and Ernest T. Lindberg are available for telephone inquiries at 202-737-4700, ext. 231 and 232.