Suing Your Client: The Rule 1.6 Problem
By Saul Jay Singer
Larry Lawyer represented Carol Client in a failed civil rights and
wrongful death action against the District of Columbia arising out of
her sister’s death while in the custody of the Metropolitan Police
Department. A furious and disconsolate Carol, certain that she lost
her case because of Larry’s incompetence or malfeasance, decides
to dedicate her life to ensuring that Larry is never again permitted
to practice law. She files a complaint against him with the Office of
Bar Counsel (OBC) and, over the course of the next few weeks, bombards
OBC daily with sloppily handwritten notes, newspaper clippings, citations
to legal authorities that have absolutely nothing to do with any issue
in the case, and rambling demands for action. Carol is astounded when
OBC quickly issues a finding that Larry had not violated any of the
D.C. Rules of Professional Conduct, and she becomes even more determined
to harm the lawyer professionally. She proceeds to advise every conceivable
acquaintance and stranger she meets that Larry is a terrible lawyer
who lost her case and should not be permitted to represent other clients.
She even goes so far as to attend community meetings in the District
of Columbia, specifically those at Larry’s church, to announce
publicly that Larry is a “dreadful lawyer” who “did
an absolutely terrible job.”
While attending a church meeting at which Carol is ranting about Larry,
Betty Buttinsky becomes outraged and decides that it is her duty to
do all she can to help Carol spread the word about Lucifer Larry. She
proceeds to fabricate and broadly disseminate an allegation that Larry
lost Carol’s case because he failed to subpoena Crucial Witness,
even after Carol had spent hours discussing Crucial Witness’ key
role in the death of her sister and ordering Larry to call him to testify.
Larry had maintained a successful 20-year practice in the District
of Columbia, drawing most of his client base from his church and community
and through positive word of mouth by former clients. Suddenly, though
he has done no wrong, his new business evaporates and his practice is
on the verge of collapse. He decides that the only way to clear his
name and to save his practice is to sue both Carol and Betty for slander.[1]
But Larry has a potentially serious problem: Rule 1.6 of the Rules
of Professional Conduct (Confidentiality of Information). How can he
possibly support his lawsuit—or even plead sufficiently so as
to withstand a motion to dismiss—without disclosing information
protected by Rule 1.6? For example, it turns out that he never called
Crucial Witness to testify because Carol, after confiding various personal
and highly confidential secrets to Larry regarding her clandestine relationship
with Crucial Witness, specifically ordered him not to do so. But wouldn’t
disclosing that information constitute a violation of the Rule 1.6 duty
of confidentiality?
Larry calls the Legal Ethics Help Line and asks if there is any “sword
and shield” exception to Rule 1.6 in this case.[2] It doesn’t
seem fair, he argues, that he be constrained by the restrictive chains
of Rule 1.6 from seeking his remedy against his former client, nor can
it be equitable to permit some slanderous intermeddler to run around
defaming and damaging him with impunity. Moreover, he vociferously argues,
he is not the one who placed his competence and Carol’s
confidences at issue; having used those confidences as a “sword”
against him, should Carol and Betty now be permitted to use them as
a “shield” against his lawsuit?
There is, indeed, an ethical analogue to the sword and shield doctrine,
which arises in several enumerated exceptions such that a lawyer may
disclose confidences and secrets “to the minimum extent reasonably
necessary.”[3] The relevant exception in Larry’s case is
Rule 1.6(e)(3), which provides that a lawyer may use or reveal client
confidences or secrets:[4]
There are two distinct and independent bases within Rule 1.6(e)(3)
that permit disclosure of client secrets—but only “to the
extent reasonably necessary.” The first, on its face, permits
disclosure only where a formal action—criminal,
disciplinary, or civil—has been instituted against the lawyer.[5]
The second exception gives the lawyer the right to respond to “specific
allegations”—whether or not “formally instituted”—but
only when those allegations are made by the client, and not by a third
party.
The practical and disconcerting implication of these provisions is
that Larry is stuck; he can sue neither Carol nor Betty.[6]
First, neither putative defendant to Larry’s suit has filed
any formal action against him.[7] As such, it is clear that he cannot
avail himself of the first clause of Rule 1.6(e)(3). Nonetheless, Larry
argues that he can sue Carol under the second clause because she has
made allegations concerning his representation of her. However, general
comments by a client regarding her dissatisfaction with her lawyer and
his performance do not rise to the level of the “specific
allegation” required by Rule 1.6(e)(3). As Comment [25] to Rule
1.6 makes clear:
As such, the rules leave poor Larry with no recourse and no remedy.
But is this fair? What do you think? Do you think that the overwhelming
emphasis of the Rules of Professional Conduct on preserving client confidentiality
is misguided in this instance? If so, how would you rewrite Rule 1.6
to permit Larry to disclose client confidences and secrets in support
of his suit against a former client and a third-party meddler, both
of whom wrongfully and irreparably damaged him?
Legal Ethics counsel Hope C. Todd and Saul Jay Singer are available
for telephone inquiries at 202-737-4700, ext. 231 and 232, respectively,
or by e-mail at ethics@dcbar.org.
Notes
[1] Of course, suing a client raises many other strategic and nonethical
considerations that are well beyond the scope of this article. Even
where it is ethically permissible, a lawyer should proceed very carefully,
indeed, before instituting suit against a client.
[2] Under the sword and shield doctrine, a well-recognized principle
of privilege law, courts will not permit litigants to selectively disclose
favorable information while asserting privilege as to unfavorable information.
Thus, a party may not make an allegation or assert a defense and then
use the attorney–client privilege to shield discovery of the underlying
facts by the opposing party. As Professor Wigmore has noted:
There is always also the objective consideration
that when [an attorney’s] conduct touches a certain point of disclosure,
fairness requires that his privilege shall cease whether he intended
that result or not. He cannot be allowed, after disclosing as much as
he pleases, to withhold the remainder.
See, John Henry Wigmore, Wigmore on Evidence (McNaughton
Rev. 4th ed. 1961), § 2327 at 636.
[3] See, for example, Rule 1.6(e)(5), which permits a lawyer
to reveal client confidences or secrets “in an action instituted
by the lawyer to establish or collect the lawyer’s fee.”
A full discussion of all Rule 1.6 exceptions is beyond the scope of
this article. It is important to note, however, that, as the comments
to Rule 1.6 make clear, even when a lawyer falls squarely within one
of the Rule 1.6 exceptions, he or she does not have carte blanche
to disclose client confidences and secrets. Rather, the lawyer must
undertake a meticulous analysis of precisely what limited client information
is reasonably required to proceed under the applicable exception.
[4] A lawyer’s duties under Rule
1.6, which are very broad, extend well beyond the mere duty to preserve
the confidentiality of attorney–client communications. In fact,
these duties apply to client “secret[s]” and to “information
gained in the professional relationship [whether or not gained from
the client himself] 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.” See Rule 1.6(b).
In general, the duty to preserve client confidences and secrets under
the Rules of Professional Conduct will usually trump other ethical duties;
as such, each of the Rule 1.6 exceptions must be very narrowly and precisely
read and applied.
[5] A fascinating question, which has
not to date been specifically addressed by the D.C. Bar Legal Ethics
Committee in any opinions, is whether under Rule 1.6(e)(3), a lawyer
who is sued by a client may disclose otherwise protected client confidences
in asserting a counterclaim against the client arising out of the same
nucleus of operative fact underlying the client’s suit. A narrow
reading of the first clause of Rule 1.6(e)(3), which limits the exception
to “a defense” to a claim, strongly suggests the
lawyer may not.
[6] Of course, he can “sue” them in the sense that there
is nothing to prevent him from actually filing an action against them.
What he cannot do, however, is use any client confidences and secrets
in pursuing his action. Filing suit under such circumstances would be,
at best, a waste of time and, at worst, a violation of Rule 3.1 (Meritorious
Claims and Contentions) and a violation of SCR-11 or Fed. R. Civ. P
11.
[7] Pursuant to the first clause of the Rule 1.6(e)(3) exception, Larry
would have been able to disclose Carol’s confidences to the extent
necessary to defend himself against her complaint to OBC. However, such
response by Larry was rendered unnecessary when OBC dismissed her complaint
and, as such, there is no “formally instituted” disciplinary
charge pending against him that could provide any ethical justification
for disclosing client secrets.
[8] As to a lawyer’s duty to a former client, see Rule
1.9 (Conflict of Interest: Former Client).
Disciplinary Actions Taken by the Board on Professional Responsibility
Hearing Committees on Negotiated Discipline
IN RE CLARISSA THOMAS-EDWARDS. Bar No. 434607. February 10, 2009. The
Board on Professional Responsibility’s Ad Hoc Hearing Committee
recommends that the D.C. Court of Appeals accept Thomas-Edwards’
petition for negotiated disposition for two consolidated matters and
publicly censure Thomas-Edwards for violations of Rules 1.4, 1.14(a),
1.15(a), and 1.16(d).
Disciplinary Actions Taken by the Board on Professional Responsibility
Original Matters
IN RE MICHAEL J. BEATTIE. Bar No. 450873. February 2, 2009. The Board
on Professional Responsibility recommends that the D.C. Court of Appeals
disbar Beattie by consent.
IN RE STEPHEN B. COHEN. Bar No. 182303. February 19, 2009. The Board
on Professional Responsibility recommends that the D.C. Court of Appeals
disbar Cohen. Cohen pleaded guilty to criminal charges in the United
States District Court for the District of Columbia, including one felony
count of willfully failing to collect and pay payroll taxes to the Internal
Revenue Service on behalf of C&R Calvert, in violation of 26 U.S.C.
§ 7202, and one misdemeanor count of willfully failing to collect
and pay sales taxes to the D.C. Office of Tax and Revenue on behalf
of C&R Calvert, in violation of D.C. Code § 47-4102(b). Cohen’s
actions involve moral turpitude, per se, and disbarment is mandatory
pursuant to D.C. Code § 11-2503(a).
Reciprocal Matters
IN RE MICHAEL H. DITTON. Bar No. 436463. February 11, 2009. On remand
from the D.C. Court of Appeals, with directions to augment the record
to consider: (1) whether the misconduct found by the Virginia disciplinary
system constitutes misconduct in the District of Columbia; and (2) whether
the conduct warrants substantially different discipline, the Board on
Professional Responsibility determines that Ditton’s misconduct
constitutes misconduct in the District of Columbia and that a five-year
suspension is within the range that could have been imposed if the case
had come as an original matter. In this hybrid of reciprocal and original
discipline, the board recommends the D.C. Court of Appeals suspend Ditton
for five years with fitness, effective immediately. Ditton filed frivolous
actions against multiple parties, one of which was filed after the court
ordered him not to file any further actions. Ditton also was convicted
in Virginia of public drunkenness, driving under the influence, and
obstructing the Sheriff’s efforts to evict him from his home.
Disciplinary Actions Taken by the District of Columbia Court of
Appeals
Original Matters
IN RE WILLIAM S. BACH. Bar No. 448392. February 26, 2009. The D.C. Court
of Appeals ordered Bach disbarred for collecting an unreasonable fee
and intentionally misappropriating client funds while serving as a court-appointed
conservator for an incapacitated, 92-year-old ward of the Probate Division
of the Superior Court. In a concurring opinion, a member of the division
noted the severity of the sanction of disbarment in this particular
case and suggested the full court revisit the Addams decision, establishing
the presumption of disbarment in cases involving intentional misappropriation.
In re Addams, 579 A.2d 190 (D.C. 1990) (en banc). Rules 1.5(a) and 1.15(a).
IN RE BRYAN A. CHAPMAN. Bar No. 439184. February 5, 2009. The D.C.
Court of Appeals issued an opinion on December 31, 2008, suspending
Chapman for 60 days, with 30 days stayed, in favor of one year probation
within which time Chapman must complete continuing legal education courses
in employment discrimination law, federal court procedure, and professional
responsibility. The opinion stated that the suspension was to commence
from the date of the opinion. On February 5, 2009, the court granted
the Office of Bar Counsel’s motion to conform the effective date
of discipline with D.C. Bar Rule XI, § 14(f), and issued an amended
opinion, striking the language “commencing from the date of this
opinion” in the order paragraph of the original opinion, thus
making the suspension effective 30 days from the date of the original
opinion.
Reciprocal Matters
IN RE DOUGLAS M. BORTHWICK. Bar No. 451764. February 12, 2009. In a
reciprocal matter from California, the D.C. Court of Appeals imposed
identical reciprocal discipline and suspended Borthwick for one year,
stayed in favor of two years’ probation with California’s
conditions and an actual suspension of 60 days.
IN RE ROBERT J. CORRY JR. Bar No. 467296. February 12, 2009. In a
reciprocal matter from Colorado, the D.C. Court of Appeals imposed identical
reciprocal discipline and suspended Corry one year and one day, stayed
pending the successful completion of a three-year probationary period
subject to all conditions imposed in Colorado.
IN RE ROYAL DANIEL III. Bar No. 237503. February 5, 2009. In a reciprocal
matter from Colorado, the D.C. Court of Appeals imposed identical reciprocal
discipline and disbarred Daniel.
IN RE L. GILBERT FARR. Bar No. 957365. February 5, 2009. In a reciprocal
matter from New Jersey, the D.C. Court of Appeals imposed identical
reciprocal discipline and disbarred Farr.
IN RE CHARLES E. MCCLAIN SR. Bar No. 439941. February 12, 2009. In a
reciprocal matter from Maryland, the D.C. Court of Appeals imposed identical
reciprocal discipline and disbarred McClain.
IN RE MERRILYN FEIRMAN. Bar No. 375519. February 19, 2009. In a reciprocal
matter from Tennessee, the D.C. Court of Appeals imposed identical reciprocal
discipline and suspended Feirman for two years with fitness.
IN RE PATRICK J. SMITH. Bar No. 296822. February 19, 2009. In a reciprocal
matter from Maryland, the D.C. Court of Appeals imposed identical reciprocal
discipline and suspended Smith for six months, nunc pro tunc, to July
13, 2008.
Interim Suspensions Taken by the District of Columbia Court of
Appeals
IN RE NAZANIN M. NASRI. Bar No. 414007. February 6, 2009. Nasri was
suspended on an interim basis based upon discipline imposed in Virginia.
IN RE MICHAEL W. RYAN JR. Bar No. 469430. February 6, 2009. Ryan was
suspended on an interim basis based upon discipline imposed in Maryland.
Disciplinary Actions Taken by Other Jurisdictions
In accordance with D.C. Bar Rule XI, § 11(c), the D.C. Court
of Appeals has ordered public notice of the following nonsuspensory
and nonprobationary disciplinary sanctions imposed on D.C. attorneys
by other jurisdictions. To obtain copies of these decisions, visit www.dcbar.org/discipline
and search by individual names.
IN RE JUDY RAYE MOATS. Bar No. 429996. On December 15, 2008, the Fifth
District Section II Subcommittee of the Virginia State Bar publicly
reprimanded Moats.
The Office of Bar Counsel compiled the foregoing summaries of disciplinary
actions. Informal Admonitions issued by Bar Counsel and Reports and
Recommendations issued by the Board on Professional Responsibility are
posted on the D.C. Bar Web site at www.dcbar.org/discipline.
Most board recommendations as to discipline are not final until considered
by the court. Court opinions are printed in the Atlantic Reporter and
also are available online for decisions issued since August 1998. To
obtain a copy of a recent slip opinion, visit www.dcappeals.gov/dccourts/appeals/
opinions_mojs.jsp.
