Three months after withdrawing from your corporate representation and from an ethically challenged law firm, you hear that you have been named a defendant in a civil suit, which also names your former legal partners and your former client. Your bad practice insurance premium would go through the roof (if it’s covered) when you alert them of a possible multi-million dollar lawsuit against you. You are, of course, finding another solution to the matter: you are the innocent defendant who will be dropped from the case if you can tell the plaintiffs the facts that will certainly show that you should not be a defendant. However, this involves exposing private communications – you’re going to be discarded! What are you going to do with that? Violate the privilege of the attorney-client and, potentially, the laws of professional duty, or waste hundreds of hours and thousands of dollars defending yourself.
The Court of Appeals for the Second Circuit held that the American Bar Association’s ethical rules required a lawyer to protect himself against third party claims by disclosing confidential consumer communications. Significantly, not only did the Meyerhoffer attorney reveal messages that the client reasonably claimed would be covered but it seems that the plaintiff was able to use the disclosures of the attorney to strengthen the plaintiffs’ argument against the former client of the attorney.
Attorney-client privilege is also considered to be one of the most vital of all common-law privileges offering immunity from compulsory disclosure and confidential legal conversations between attorneys and clients. By maintaining the client’s trusts, the right allows the client to make full disclosure to their counsel, thus allowing for more fully informed representation. The privilege is the strong basis on which the relationship between the lawyer and the client is established. However, this basis may become liquid if the lawyer and the (former) client find themselves at odds either with claims of insufficient counsel assistance, accusations of malpractice or charges of criminal activity by the attorney with respect to the client. In any of the cases alluded to above, a lawyer might be forced to report the trust of the client. The attorney’s right to disclose the client’s trust is, in fact, very large when disclosure may be considered to be self-defense. However, the invocation of self-defense theory bears several pitfalls which could be an opportunity (and an immense temptation) for both civil plaintiffs and prosecutors to target the defendant’s attorney as a reason to obtain “back door” access to client confidentiality.
The extension of this doctrine is alarming, considering the increasing number of lawsuits against lawyers. Significant constitutional implications are posed when prosecutors and defense lawyers try to override the right in order to gain disclosure of private correspondence between the client and the counsel. However, the Courts remained largely silent on this challenge to civil rights of clients. Disclosure of a lawyer-client correspondence is a sensitive issue due to the inherent conflict between the two masters of a lawyer: the laws of professional duty and the rules of proof (i.e.the privilege).
The modern approach to privilege confers the right to disclosure to the client, who retains the sole power to waive the right. According to one legal scholar, ‘the authorization of a lawyer to reveal to others what is revealed would not only be a gross breach of the sacred trust on his part, but would fully kill and preclude the utility and benefits to be obtained from professional assistance.’ The lawyer must, however, take guidance from two sources which may be in conflict with the disclosures: By itself, the right of the attorney-client privilege does not place an ethical duty on the attorney to withhold client trusts. In contrast to the rules of evidence, the rules of professional responsibility require the attorney not to disclose details relating to the defense of the client, except in such confidential circumstances.
The exception to self-defense is one of the exceptions accepted, to a certain extent, by both the rules of proof and the rules of professional responsibility and, under certain cases, by a lawyer to disclose client confidences. Historically, the courts have allowed the attorney to claim the right of the attorney-client exception to self-defense where the attorney is either sued for malpractice, charged with wrongdoing by the client of the former client, or brought suit for the recovery of the fee. However, in some situations, the exception to self-defense can be read more narrowly allowing, if not requiring, the disclosure of client confidences.
Three cases have historically been known as giving rise to the standard understanding of the exception to self-defense: when a lawyer has been sued for malpractice; when a lawyer has brought suit in order to recover a fee; and when a lawyer is charged with wrongdoing in the course of a conflict between a client (or former client) and another party. Disclosure of details in these cases – all circumstances in which the counsel was in actual opposition to the client – was justified largely by the understanding of the client’s claims of wrongdoing as tacit disclaimer of privilege. The rules of proof have codified a widely held view that acknowledges an exception to the privilege when a client and a prosecutor become an adversary in a subsequent conflict.