Self-Defense: Rules v. Code, not what you think?

While researching confidentiality in the Rules and the Code for another reason, I came upon this textual issue.

As we know, the text of the self-defense exception in the Rules is and was meant to be broader than the text in the Code. For example, it allows revelation of client confidences not only for defensive purposes but also to establish a "claim." So an in-house lawyer can sometimes use confidential information to prove discrimination by an employer  or to prove retaliatory discharge. 

The Rules also allow revelation of confidences "to respond to allegations in any proceeding concerning the lawyer's representation of the client." It does not say the lawyer has to be a party or counsel in the proceeding.

But the word "proceeding" is limiting.

What if the lawyer's work is attacked outside a tribunal, say in the press, by the (now former) client or others? Can the lawyer defend with confidential information? It would seem not as the text reads.

But the Code language, though it focuses on defense only, not claims (except for claims for fees), allows a lawyer to reveal confidences "to defend himself...against an accusation of wrongdoing." It is not limited to a "proceeding," unless we read the word "accusation" to mean a "formal accusation" or something like that, which is not self-evident.

So what's the answer? And what should be the answer? I can certainly imagine situations where my reputation can be more seriously harmed in a news story than by what someone says in court in passing.

Comments

[Andrew Perlman]

Interesting question. The 1.6 exceptions permit lawyers to disclose confidential information in order to protect themselves against potential harm. The Model Rules version, as you say, seems to envision protection against criminal or civil litigation against the lawyer. The Model Code version seems to take this one step further and permit disclosure when it would be necessary to protect the lawyer from adverse publicity.

I'm inclined to say that the Model Code formulation (or at least the formulation of it that could be interpreted to include adverse publicity) is too broad, because it is too difficult to determine the extent to which adverse publicity will affect a lawyer's bottom line. Surely, there are news accounts that might adversely affect a lawyer's business, but there are far more cases that might question a lawyer's conduct in a more modest way. If we permit lawyers to disclose confidential information any time the press impugns their conduct, we'd be adopting a far too broad exception to 1.6. For example, would a critical blog post count? An op-ed in a local newspaper? Because the line would be impossible to draw, I think that limiting the disclosure to formal "proceedings" is the right approach.

[Monroe Freedman]

ULE 155 (2004)points out that the rule is limited to "establish[ing] a defense" in any "proceeding," and that the comment goes well beyond the rule. According to the Scope section of the MRs, the comments are intended only as "guides," but "the text of each rule is authoritative."

I don't think that the comment should be taken to amend the rule.

[Andrew Perlman]

Monroe, I think you are correct regarding the Model Rule. I interpreted Stephen's question to be whether the Model Code could be interpreted this broadly and whether such a broad interpretation would be a preferable approach from a normative standpoint.

[Monroe Freedman]

Of course. My apologies for a too-hasty response.

In any case in which the Model Code applies, I hope that it would be interpreted in accordance with the Model Rule as distinguished from its comment.

[stephen.gillers@nyu.edu]

I am disinclined to allow a defense in the media, and yet we can imagine rather serious harm from a client with a PR firm, leaving the lawyer only to an action for defamation to the extent the media statements are in fact defamatory. Perhaps we need some clarification somewhere whether or when media defense is allowed. Of course, the Code is dead except that NY retains the somewhat broader (in one way) Code language, so it's not dead.

Might we also say that some media comments implicitly waive confidentiality on the subject of the comments?

[Andrew Perlman]

Stephen, I can certainly appreciate the concern of a lawyer who feels that she is being unfairly and publicly disparaged by a former client. As you suggest, one possibility is to sue for defamation. If such a claim is brought, the lawyer would then have a "proceeding." Just like a lawyer can disclose confidential information in order to recover on a fee, the lawyer should also be permitted to disclose confidential information in order to prove a defamation claim.

Absent a suit for defamation, however, I am skeptical that the client implicitly waives confidentiality on the subject of the comments. Of course, a client can implicitly waive *privilege* through public disclosures, but I don't know of any implicit waiver doctrine for confidentiality. Of course, there may be one; I've just never heard of it. Do you have any authority for the concept of a client's implied subject matter waiver of confidentiality? Without such authority and in the absence of any suit for defamation, I would be reluctant to advise a lawyer that she could disclose confidential information under these circumstances, even in a state (like New York) that has retained the Model Code language. But I can see how the issue is a close one under the Model Code wording.

[Monroe Freedman]

My colleague, Roy Simon, was the Reporter for the new NY Rules. He is also the author of Simon's New York Code of Professional Responsibility Annotated (well over 1,000 pp.), and he is also, of course, Steve's co-author on The Regulation of Lawyers. He says in the 2005 edition (the last one I have handy) at p. 547:

"I have ... discussed this issue with other lawyers and professors and have concluded that, to fall within DR 4-101(C)(4), the accusation must be stated either in a pending formal proceeding or in connection with a formal proceeding that the lawyer reasonably anticipates will be brought. Thus, I no longer think that a mere private letter, or conversation, or newspaper column is sufficient to trigger a lawyer's right to disclose under the self-defense exception unless it includes a threat to file a complaint against the lawyer."

[Law school grad]

Part of the comment to the self-defense section, 1.6(b)(5) of the ABA Model Rules states: "Paragraph (b)(5) 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." Interestingly, this comment has been adopted by almost all states that use the ABA self-defense exception, so perhaps they intended the word "proceeding" to be interpreted broadly.

From a normative standpoint, it may make sense to allow for disclosures outside of a proceeding so as not to discourage attorneys from taking on unpopular cases. Sometimes parties that are unsuccessful in court will take their case or cause to the news media. Sometimes they blame their lawyers and even make damaging accusations against them.

For example, in local news media, I've seen quite a few convicted criminal defendants blame their lawyers for supposedly telling them to commit perjury or do other things which led to their conviction. (Hopefully) these accusations are usually false. I imagine though that these statements on prominent local news media often hurt the attorney's credibility both as to honesty and to effectiveness. They can make it harder for those same attorneys to represent other defendants before jurors drawn from the same community. Many of the jurors, whether they are consciously aware of it or not, will have seen some of these news reports from time to time and may be cognizant of the attorney's reputation in the community.

The legal profession asks that lawyers be willing to take on unpopular clients and difficult civil and criminal cases in order to ensure fair representation. These cases are often not big money-makers, so there is already an incentive to avoid them. Attorneys may have greater willingness to take on such cases if they have the ability to defend their public reputation as an ethical attorney in the (hopefully) rare situation where things turn sour and they face public accusations of poor conduct. Where public statements in self-defense are prohibited, wise attorneys may avoid involvement in unpopular or difficult cases in order to preserve their reputation for their own sake and for the sake of their other less risky clients.

[Monroe Freedman]

As I pointed out in my too-hasty comment, the Scope section says that the rules are authoritative, and the comments are only guides. It seems to me that the comment you cite goes well beyond the wording of the rule and should not be understood to expand it.

Also, in New York at least, Roy Simon has been referred to by one judge as "the gold standard," and, because he was the Reporter, his interpretation should carry weight.

[Law school grad]

In New York then, your interpretation would seem to be the best one. I think it's an open question in the other states that have adopted the comment language. As you point out, the rules are the ultimate authority. Nevertheless, there are plenty of situations when statutes or rules are not interpreted literally, and the comment would seem to indicate perhaps that is true here.

In most states, there seems to be far fewer published cases on confidentiality than on evidentiary privileges, so there isn't alot of guidance. I gather this is because privilege arises in litigation, whereas confidentiality questions arise in state bar proceedings that usually are not published unless the lawyer faces public discipline. So if it were decided that a confidentiality rule did not prohibit certain conduct, there would be no public record of that decision.

[Mary Wolff]

It is interesting to note that in the Restatement Third of Law Governing Lawyers §64(e), that it attempts to address this issue. More specifically, this section states "When a client has made a public charge of wrongdoing, a lawyer is warranted in making a proportionate and restrained public response." Under this interpretation of the self-defense exception, it seems appropriate to make a public statement of similar type as the accusation.

[LegsandRegs]

My comment above was also too hasty. New York explicitly does not follow the interpretation in the Restatement Third. In Louima v. City of New York, 2004 U.S. Dist. LEXIS 13707 (2004), the court held that the NY rules did not permit disclosure for self-defense in a public forum. Disclosure is only appropriate where there is a disciplinary action, fee litigation, government investigation or civil suit in which the attorney could be called upon to defend himself from the misconduct charges. Further, the court states "mere press reports regarding an attorney's conduct do not justify disclosure of a client's confidences and secrets, even if the reports are false and the accusations unfounded." The court justified its position by saying the press is not an appropriate forum for attorneys to defend themselves.

[Law school grad]

The New York Rules of Professional Conduct do not use the same language as the ABA Model Rules for its exception to confidentiality for disputes regarding a lawyer's conduct. The language used in the ABA Model Rules exception, now codified as MR 1.6(b)(5), and the associated comments were adopted either verbatim or with very few changes by most states.

Therefore, it seems entirely possible that while New York rules apparently do not allow self-defense disclosures outside of judicial proceedings, that situation may not be applicable in states that instead use the ABA Model Rules language.

[petek]

self defense is necessary
http://www.selfdefense-techniques.com