The WSJ reports on a dispute between Vanguard and a former in-house lawyer who has filed a complaint in NY alleging Vanguard has underpaid federal taxes. Vanguard is reported to accuse the lawyer of breaching confidentiality; the lawyer has asked the SEC to intervene on his side.
Such cases may raise two distinct issues: the report itself, which may fall within exceptions to confidentiality in a Model Rules jurisdiction or under the SEC's rules, and backup for the report in the form of information--such as documents either in hard copy or digital form--the reporting lawyer might take from his or her employment. Even if we assume the report is protected the taking of documents raises distinct issues regarding client property.
I tend to think those issues should be resolved as issues regarding the report are resolved--i.e., taking such information does not violate a duty to a client to the extent the information is reasonably necessary to facilitate a permissible report. In essence the report would create a privilege (in the tort law sense) covering the disclosure to enforcement officials or courts; no privilege would attach if the lawyer put the documents up on the internet or mailed them to a reporter.
The documents issue lurks in the background of Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190, 1194–96 (2d Cir.), cert. denied, 419 U.S. 998 (1974). Often discussed as a self-defense case there are actually two disclosures in that case--an initial report (including documents) to the SEC and a subsequent disclosure (of the material provided the SEC) to plaintiffs' counsel on a self-defense basis. It provides some clues but, arising in the context of self-defense, does not decide these isues.
DM