Ethics Opinion

Opinion No. 96-4

April 1996

Summary: A lawyer threatened with indictment as a co-defendant with a former client may reveal the minimum amount of confidential information of the client necessary to convince the prosecutor that he had not committed any crime. In many, but not all, situations, it would be good practice to give the former client advance warning of the revelation, but the Disciplinary Rules themselves do not provide any clear guidance on this subject.

Facts: A lawyer threatened with indictment as a co-defendant with a former client inquires whether he may, without violating DR 4-101, reveal confidential information of the former client in an effort to convince the prosecutor that he was not involved in any criminal violation.
Discussion: DR 4-101 provides:
"(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly: (1) Reveal a confidence or secret of his client...
"(C) A lawyer may reveal: ...
(4) Confidences or secrets necessary to establish or collect his fee or to defend himself or his employees against an accusation of wrongful conduct."
The Committee's view is that DR 4-101(C)(4) permits a lawyer to reveal confidential information of a client to defend against an accusation of wrongful conduct in his handling of the client's affairs when the accusation is that of the government as well as when the accusation is that of the client. The Disciplinary Rule is phrased generally, with no limitation, and since there are policy reasons that support the broader rule, we see no reason to suggest that a limitation be implied. One reason for the exception contained in DR 4-101(C)(4) is that it would be unfair for the principal (the client) to refuse to permit the agent (the lawyer) to defend against a charge of misconduct by the agent in carrying out the principal's business. That reason applies whether the accusation is that of a client or a third party.
Moreover, the recommendations of the Supreme Judicial Court's Committee on the Rules of Professional Conduct, contained in its report submitted May 13, 1996, support this interpretation. Its recommended Model Rule 1.6(b)(2) permits revelation of confidential information by a lawyer "to establish a defense to a criminal charge...against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client." See also Hazard and Hodes, The Law of Lawyering 175-179 (2d ed. 1993-1996) and Wolfram, Modern Legal Ethics 309-310 (1986) and cases cited therein.
The Committee is also of the view that such information may be revealed to stave off a threatened indictment of the lawyer as well as to defend against an actual indictment. We believe that the term "accusation" in DR 4-101(C)(4) includes the situation where, as here, the lawyer has been notified that he is a target of the government's investigation.
We should reiterate the advice that we have given in Opinion 96-3 that the revelation of confidential information should be limited to the information "necessary" to defend. That principle has been referred to in Massachusetts both in Commonwealth v. Woodbury, 26 Mass. App. Ct. 636, 637 (1988) and Commonwealth v. Brito, 390 Mass. 112, 119 (1983).
The principle that no more confidential information should be revealed than is necessary for the lawyer to defend himself is related to another issue, namely, whether the lawyer ought o advise the former client that he is preparing to reveal confidential information so that the former client may take legal action to prevent the revelation, or some of it, if he wants to object. The Disciplinary Rules are silent with respect to this issue.
The Supreme Judicial Court's Committee on the Rules of Professional Conduct, in its report submitted May 13, 1996, address this problem in paragraph 19A of its proposed Comment to Rule 1.6. That paragraph provides:
Whenever the rules permit or require the lawyer to disclose a client's confidential information, the issue arises whether the lawyer should, as a part of the confidentiality and loyalty obligation and as a matter of competent practice, advise the client beforehand of the plan to disclose. It is not possible to state an absolute rule to govern a lawyer's conduct in such situations. In some cases, it may be impractical or even dangerous for the lawyer to advise the client of the intent to reveal confidential information either before or even after the fact. Indeed, such revelation might thwart the reason for creation of the exception. It might hasten the commission of a dangerous act by a client or it might enable clients to prevent lawyers from defending themselves against accusations of lawyer misconduct. But there will be instances, such as the intended delivery of whole files to prosecutors to convince them not to indict the lawyer, where the failure to give notice would prevent the client from making timely objection to the revelation of too much confidential information. Lawyers will have to weigh the various policies and make reasonable judgments about the demands of loyalty, the requirements of competent practice, and the policy reasons for creating the exception to confidentiality in order to decide whether they should give advance notice to clients of the intended disclosure.
We believe that this Comment is equally applicable to the present Disciplinary Rule and that the inquiring lawyer must weigh the various policies mentioned in light of the total factual context, which is unknown to us, in order to decide whether to give the former client advance notice of this intended revelation. (See our Opinion 90-2 for one situation where, in the circumstances of revelation under DR 4-101(C)(2), the client's intention to commit a crime, we advised that the lawyer should attempt to persuade the former client to make disclosure of the confidential information himself before the lawyer decided to do so.)

Permission to publish granted by the Board of Delegates on November 12, 1996. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.