Advisory Opinion:
1754
Year Issued:
1997
RPC(s):
RPC 1.6; 8.4(a)
Subject:
Client confidence or secret; disclosure of confidences to third party after lawyer sued for malpractice
[The inquiring lawyer represented another lawyer in a malpractice action.] You ask whether previously protected client confidences can be disclosed to a third party after the attorney has been sued by the client for malpractice and the client has waived the attorney-client privilege. You believe that disclosure of this information requested by the third party would establish a defense to the malpractice action.
In reference to the disclosure of client confidences to a third party, it is the Committee's opinion that voluntary disclosure of the information under the existing circumstances would be a violation of RPC 1.6(a) by your client and that RPC 8.4(a) applies to prevent you from disclosing the information. In the event that a formal discovery request is made under court rules or by subpoena, the Committee refers you to the comment to ABA Model Rule 1.6 (which is similar to RPC 1.6). The comment states that where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. The comment also provides that the disclosure, if allowed under the rule, should be no greater than the lawyer reasonable believes is necessary to vindicate innocence, should be made in a manner that limits access to the tribunal or other persons having a need to know it, and the lawyer should seek protective orders to the fullest extent practicable.
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