Opinion #55. Disclosure of Confidences of One Client in Defending Grievance Filed by Another

Issued by the Professional Ethics Commission

Date Issued: April 22, 1985

I. Bar Counsel’s Request for Advisory Opinion.

Pursuant to Maine Bar Rule 11(c)(1), Bar Counsel has requested an advisory opinion from the Professional Ethics Commission with respect to the following facts:

Attorney X has been complained about by Client C. As part of the factual allegations within C’s complaint, C has alleged certain misconduct by X in terms of his relationship with another client, D. The nature of these allegations is that X engaged in a conflict of interest and disclosed C’s confidential communications, in the context of X’s representation of D. Therefore, counsel for X, in preparation of his answer to C’s grievance complaint, has inquired of Bar Counsel whether X may properly disclose matters otherwise confidential between X and D. D, through his new counsel, has indicated to counsel for X, that D will not consent to any such disclosure of X’s confidential communications with D.

II. The Issue.

The issue presented by this inquiry is as follows:

Where a client has filed a grievance complaint against his lawyer, alleging that his lawyer engaged in a conflict of interest and disclosed confidential communications to another client of the lawyer, may the lawyer disclose confidential communications between himself and that other client in his defense to those allegations where that other client does not consent to such disclosure?

III. Opinion.

With certain exceptions, Maine Bar Rule 3.6(l)(1) provides that “a lawyer shall not, without the informed written consent of the client, knowingly reveal a confidence or secret of his client; use such a confidence or secret to the disadvantage of his client; or use such confidence or secret to the advantage of himself or a third person.”[1] One of the exceptions[2] to this general prohibition is set forth in Rule 3.6(l)(3) as follows:

(3) This provision is not violated by the disclosure of confidences and secrets by a lawyer as necessary to the defense of himself, his partners, employees, or associates against an accusation of wrongful conduct, in a judicial proceeding including but not limited to, any grievance proceeding under these rules.

The self‑defense exception provided by Rule 3.6(l)(3) permits a lawyer who is accused of wrongful conduct by his client to disclose that client’s confidences and secrets as necessary to the lawyer’s defense in a grievance proceeding. The more difficult question, involved here, is whether the self‑defense exception provided by Rule 3.6(l)(3) permits a lawyer to disclose his client’s confidences and secrets in order to defend himself against an accusation of wrongful conduct in a grievance proceeding instituted against him not by that client, but by a third party, in this case, another client of the lawyer.

This situation, which concerns a third party complaint, involves considerations quite different from those involved when the complainant is the client whose confidences and secrets may be disclosed by the lawyer in his defense. In that latter situation, the complaining client can be said to have waived the attorney‑client privilege since by accusing his lawyer with a breach of his duty to him, the client thereby places in issue communications between him and his lawyer that are relevant to that issue. See Laughner v. United States, 373 F.2d 326, 327 (5th Cir. 1967) (“The privilege is not an inviolable seal upon the attorney’s lips. It may be waived by the client; and where, as here, the client alleges a breach of duty to him by the attorney, we have not the slightest scruple about deciding that he thereby waives the privilege as to all communications relevant to that issue”). In contrast, in the third party complaint situation, the client whose confidences and secrets may be disclosed by the lawyer in his defense against the complaint has no control over when and to what extent the lawyer may choose to disclose those confidences and secrets in order to protect himself. Moreover, if the lawyer is permitted to disclose the client’s confidences and secrets in defending himself against a third party complaint, there is a risk that third parties might invoke grievance proceedings as a means to force a lawyer to disclose confidential communications with a client in order to defend himself.

These considerations suggest that if disclosure is permissible in a situation involving a third party complaint, a client may be less willing to be completely open with his lawyer, and to that extent the underlying purpose of the attorney‑client privilege[3] will be compromised. At the same time, however, if the self‑defense exception is not applicable in cases involving third party complaints, the lawyer may be unable to defend himself from an accusation of professional misconduct.

These competing interests(the legitimate interest of the client in being assured that his lawyer will not disclose his confidences and secrets, and the legitimate interest of the lawyer in defending himself from an accusation of professional misconduct) must both be taken in account in construing the meaning and scope of Rule 3.6(l)(3) in a situation involving a third party complaint.

While Rule 3.6(l)(3) does not explicitly address the third party complaint situation, that provision is broadly drafted: by its terms it applies to “any grievance proceeding.” Although the Reporter’s Notes accompanying Rule 3.6(l) furnish little guidance concerning the scope of the self‑defense exception, the Reporter’s Notes indicate that Rule 3.6(l) was, with certain modifications not germane here, derived from D.R. 4‑101 of the A.B.A. Model Code of Professional Responsibility.[4] We also note that prior to November 1, 1978, when Rule 3.6(l) was originally adopted, D.R. 4‑101 (C)(4) had been construed as being applicable to third party complaints. Meyerhofer v. Empire Fire and Marine Insurance, 497 F.2d 1190 (2d Cir. 1974), cert. den. 419 U.S. 998 (1974) (lawyer charged as a defendant with securities law violations may disclose client confidences and secrets necessary to defend himself against accusation of wrongful conduct); In re Friend, 411 F. Supp. 776 (S.D. N.Y. 1975) (granting attorney’s request for permission to submit documents protected by the attorney‑client privilege to the grand jury).

In view of the broad language of Rule 3.6(l)(3), which by its terms applies to “any grievance proceeding,” and given the principle that a statute enacted after a judicial construction is to some degree presumed to take that construction,[5] the Commission concludes, consistent with the above‑cited judicial authorities construing analogous D.R. 4‑101(C)(4),6 that Rule 3.6(l)(3) is applicable to the third party complaint situation involved in the present case. This Commission further concludes that in this third party complaint situation Rule 3.6(l)(3) should be further construed so as to require the following attendant safeguards in order to reconcile the legitimate interests of both the lawyer and the non‑complaining client and to prevent undermining of the purpose underlying the attorney‑client privilege:

  1. Prior to the lawyer’s disclosure, the lawyer should inform the client whose confidences and/or secrets are to be disclosed of (i) the reason for the disclosure; (ii) the specific matters that are to be disclosed; and (iii) to whom the disclosure will be made.

  2. Any such disclosure should be no greater than is necessary to the defense of the lawyer against the specific accusation of wrongful conduct against him.

  3. Any such disclosure should be made only to Bar Counsel and/or the Grievance Commission.

  4. Bar Counsel and the Grievance Commission must not reveal any such client confidences and/or secrets to the third party complainant or others.

  5. If the grievance proceedings lead to further proceedings before a court, any such client confidences and secrets that are disclosed to Bar Counsel and/or the Grievance Commission must remain protected from disclosure to the third party complainant or others absent a court order permitting such disclosure.


Footnotes

[1] Rule 3.6(l)(5) provides that as used in Rule 3.6(l), “confidence” refers to “information protected by the attorney‑client privilege under applicable law,” and “secret” refers to “other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or detrimental to the client.”

[2] Other exceptions to the general prohibition prescribed by Rule 3.6(l)(1) are (1) disclosure with the “written consent of the client” [Rule 3.6(l)(1)]; (2) disclosure “as required by law or by order of court” [Rule 3.6(l)(1)]; (3) disclosure of “a client’s intention to commit a crime or the information necessary to prevent the crime or to avoid subjecting others to risk of harm” [Rule 3.6(l)(4). None of these exceptions is involved here. For purposes of this opinion the Commission also assumes that there has been no waiver of the attorney‑client privilege.

[3] The rationale for attorney‑client privilege is that the interests of justice are best served by encouraging clients to make full disclosure to their attorneys and thus enable their attorneys to serve them more effectively. Field & Murray, Maine Evidence §502.1.

[4] In August 1983, the A.B.A. replaced the entire Model Code with the Model Rules of Professional Conduct. D.R. 4‑101(C)(4) of the Model Code provided that a lawyer may reveal “confidences and secrets necessary . . . to defend himself or his employees or associates against an accusation of wrongful conduct.”

[5] See General Motors Acceptance Corporation v. Anacone, 160 Me. 53, 78 (1964).

[6] The Commission notes that in both Meyerhofer and Friend, supra, the lawyer was charged with wrongdoing in which his client was allegedly implicated. Since the inquiry presently before the Commission does not state that such a situation is involved here, those decisions are to that extent distinguishable from the case at hand. That distinction, however, is not significant since the self‑defense provision of D.R. 4‑101(C)(4), which was the basis for those decisions, is not by its terms limited to the situation in which a lawyer is charged with wrongdoing in which his client’s conduct is implicated. Compare A.B.A. Model Rule 1.6(b)(2) (providing that a lawyer may reveal otherwise confidential information in a third party complaint situation to the extent the lawyer “reasonably believes necessary . . . to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved. . . .”).


Enduring Ethics Opinion