The New York County Lawyers’ Association
NYCLA ETHICS OPINION NO. 722 (Issued 5/14/1997)
CONFIDENCES AND SECRETS; DEFENDING AGAINST PUBLIC CRITICISM
Where a lawyer is accused of actionable misconduct by a client and where the context in which the accusation is made would lead a person to reasonably conclude that the lawyer is subject to a charge or claim involving an imminent (threatened or pending) proceeding for the alleged misconduct, a lawyer may disclose client confidences and secrets under DR 4-101 (C)(4) only to the extent necessary to defend against such accusation.
DR 4-101; EC 4-1; EC 4-6.
The inquirer asks whether an attorney may respond to criticism by a client who has accused the attorney of “not representing her interests.’* The inquirer believes that the client has communicated with the attorney’s neighbors about her case and has blamed the inquirer for the breakdown of negotiations, thereby ruining a potential real estate deal. The attorney wishes to respond to the client’s criticism and asks whether, due to the fact that the client has published her version of the case to the attorney’s neighbors, the inquirer may disclose the client’s confidences for the purpose of defending himself.
As a general rule, the Code of Professional Responsibility (the “Code”) requires lawyers to preserve client confidences and secrets. In particular, DR 4-101(B) prohibits a lawyer from knowingly (1) revealing a confidence or secret of a client, (2) using a client confidence or secret to the disadvantage of the client, or (3) using a client confidence or secret for the advantage of the lawyer or a third person, unless the client consents after full disclosure. This duty of confidentiality survives the termination of the representation. EC 4-6.
DR 4-101(C) lists the exceptions to the duty of confidentiality. Of relevance here is DR 4-101 (C)(4), which states that:
A lawyer may reveal…
(4) confidences and secrets necessary to… defend the lawyer or his or her employees or associates against an accusation of wrongful conduct.
DR 4-101(C)(4). As a preliminary matter, the Committee notes that the above exception, on its face, is not limited to accusations involving formal proceedings or charges. Thus, a lawyer may reveal protected information in self-defense against an accusation of alleged wrongdoing, regardless of whether there is a formal suit, criminal indictment or disciplinary charge. See N.Y. City 1986-7 (1986) (opining that “a lawyer… [need not] resist disclosure until formally accused through the return of an indictment, the service of a summons and complaint or the institution of disciplinary charges. The cost and other burdens of defending against a formal charge and the damage it can inflict on a lawyer’s reputation, even if ultimately resisted successfully, argue against such a restrictive interpretation.”); General Realty Assocs. v. Walters, 136 Misc. 2d 1027, 1029, 519 N.Y.S.2d 530, 532 (N.Y. Civ. Ct. 1987) (“Nor need the charge under [under DR 4-101(C)(4)] be formal or precise….”).
However, it is the opinion of this Committee that DR 4-101 (C)(4) applies only to accusations of “wrongful conduct” that are actionable, involving the threat of an imminent proceeding, and not merely to negative references or gossip about the attorney. Thus, a lawyer may not reveal client confidences and secrets only to protect his or her reputation against unfavorable or unflattering characterizations regarding the lawyer or the lawyer’s services unless such characterizations are subject to an impending charge or claim brought before a body empowered to rule on such matters. Indeed, an interpretation of the rule that would allow lawyers to divulge protected information based on disapproving references or depictions, without more, is inconsistent with the solemn duty under DR 4-101(B) to preserve client confidences and secrets. See EC 4-1 (“Both the fiduciary relationship existing between lawyer and client and the proper functioning of the legal system require the preservation by the lawyer of the confidences and secrets of one who has employed or sought to employ the lawyer….”); N.Y. City 1986-7 (“The duty to preserve client confidences and secrets is one of the most solemn and significant governing attorneys Butler v. U.S., 414 A.2d 844, 849 (D.C. Cir. 1980) (“The protection of a client’s confidence is so basic a tenet of professional responsibility that it yields only in the rarest of real ethical dilemmas.”). Accordingly, a lawyer may reveal confidences and secrets only in those rare instances where a claim or charge, such as a breach of contract, a breach of fiduciary duty, legal malpractice, or a violation of the Code, is brought and where a proceeding is pending or imminent
In addition, the Committee believes that it is necessary to consider the context in which the accusation is made to determine whether a lawyer may disclose protected information. A lawyer may not reveal confidences and secrets, for example, based solely upon a suspicion of wrongful conduct on the part of the lawyer which is expressed by the client to a third party. N.Y. City 1986-7 (“[T]he values furthered by Canon 4 and the corresponding Disciplinary Rules and Ethical Considerations require more than a whisper or suspicion of wrongdoing before client confidences and secrets may be disclosed.”). Similarly, a lawyer may not disclose confidences and secrets if the lawyer suspects that he or she has been accused of wrongdoing but is uncertain as to the nature or degree of such accusations. Rather, DR 4 – 101 (C)(4) requires that the allegation be public and specific such that a person would reasonably conclude that the lawyer is subject to a claim or charge for such misconduct and that the claim or charge is looming and will be brought before a body empowered to rule on such claim or charge. See General Realty Assocs, 136 Misc.2d at 1029, 519 NY.S.2d at 532 (“[W]here the fair implication of the client’s assertion tends to jeopardize the attorney’s position, the right of self-defense attaches.”). A passing remark or an expression of doubt regarding the lawyer’s conduct or professionalism, on the other hand, is not enough to invoke the exception to the duty to preserve confidentiality.
Applying the foregoing discussion to the present inquiry, in the opinion of the Committee, although the client’s claim that the inquirer did not represent her interests may constitute “wrongful conduct” under DR 4 -101 (C)(4), See, e.g., Butler v. U.S., 414 A.2d at 858 (Reilly, J., dissenting) (“It can scarcely be doubted that charges of neglect of a client’s interests… amount to an accusation of professional misconduct [under DR 4-101 (C)(4)]”), it is not clear that a claim or charge is pending or imminent. Indeed, the facts presented to the Committee suggest little more than gossip or negative references regarding the lawyer’s representation and certainly does not merit invoking the rare exception to the solemn duty to protect client confidences and secrets. Accordingly, this Committee believes that the inquirer may not — without more — divulge protected information pursuant to DR 4 – 101(C)(4).
As a general matter, we caution lawyers to consider carefully the context in which statements are made in order to determine whether the client’s accusations justify the application of the exception under DR 4-101(C)(4). As stated above, the exception only applies where the accusation is rendered in such a manner that a person would reasonably conclude that the inquirer is subject to a charge or claim in an imminent (pending or threatened) proceeding. Whereas a passing remark is not enough to render the exception applicable, knowledge that the client has directly and specifically accused the inquirer of actionable misconduct does invoke the self- defense exception.
Finally, we note that if DR 4-101(C)(4) applies, disclosure made thereunder should be “no more extensive than is ‘necessary’ to establish the non- involvement” of the lawyer in the alleged wrongdoing. N.Y. City 1986-7; see also Model Rule 1.6(b)(2), ABA Model Rules of Professional Responsibility, Comment  (clarifying Model Rule 1.6(b)(2), the corollary to DR 4 – 101 (C)(4), and stating that a “lawyer must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure.”)
Where a lawyer is accused of actionable misconduct by a client and where the context in which the accusation is made would lead a person to reasonably conclude that the lawyer is subject to a charge or claim involving an imminent (pending or threatened) proceeding for the alleged misconduct, a lawyer may disclose client confidences and secrets under DR 4-101(C)(4) only to the extent necessary to defend against such accusation.