Bar Counsel Notes: Confidentiality of Information/Candor Toward the Tribunal

Once a client files a grievance complaint directly against her or his own lawyer, that client normally cannot have it both ways. Under M. R. Prof. Conduct 1.6(b), such a complaint filing authorizes and permits that respondent lawyer to "?reveal a confidence or secret of a client to the extent the lawyer reasonably believes necessary: ?(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client?or to respond to allegations in any proceeding concerning the lawyer's representation of the client."

When the controversy, however, is not filed by a client directly against that lawyer, the Rule 1.6(b)(5) exception providing such an authorization to reveal privileged communications may not apply. For example, ABA Formal Opinion 10-456 (July 14, 2010) states that it is normally improper for a criminal defense lawyer - as the respondent in a post conviction filing by a former criminal client - to disclose any of that client's confidences in response to a prosecutor's request prior to a court proceeding. Instead, Opinion 10-456 states that to comply with the preliminary "reasonable need" requirement under Rule 1.6(b)(5), that lawyer must refuse to make any such disclosure of "?client confidences to the prosecutor outside any court-supervised setting."

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.