If you think about it, lawyers are storytellers by nature. We must find the truest story that advocates for the client. At times, that story can inextricably intertwine with the lawyer’s professional life.

But what happens when the lawyer wants to change or add paths to their own story by capitalizing on the stories they have come across? What happens when the lawyer wants to become a writer, whether in print or digitally? What happens when the lawyer wishes to participate in a documentary, podcast, TV series, or movie? The inevitable questions that come to light are what the lawyer may write and share with the public and what falls under the attorney-client privilege.

Lawyers¹ have fallen into the trap of violating a former client’s confidences while trying to branch out as a professional writer, consultant, or participant in a docuseries. One example is that of an Illinois lawyer suspended after a judge found that he could not violate a former client’s confidences by revealing what happened to a missing woman.² The lawyer argued that he would not be violating attorney-client privilege because his former client lied about him, claimed ineffective assistance of counsel, and would not harm or disadvantage his client since the client would not get out of jail for convictions on other crimes. The former client’s public defender argued that the lawyer’s revelation may harm his bid for a new trial. Another example is an Indiana lawyer disbarred after writing a book for his own monetary gain about a former client that revealed information that fell under attorney-client privilege.³ A third example is that of an Arizona lawyer disbarred after writing a tell-all book without receiving prior permission from a former client.⁴

Lawyers receive calls from the media or publishers wanting to know their client’s side of the story. The argument is that the public has a right to know when, in reality, it is the public demanding to know without any right to the information the lawyer possesses. Revealing information without the proper releases may subject Bar members to discipline; therefore, it is important to understand the various restrictions contained in the Rules of Professional Conduct. It is also important to remember that “the privilege of practicing law has required lawyers to hold inviolate information about a client or a client’s representation beyond that which is protected by the attorney-client privilege.”⁵

There are those who argue that all persons have the freedom of speech under the First Amendment of the U.S. Constitution and that the First Amendment and associated freedoms of the press dictate that the government and/or ethical rules cannot prevent the media from covering cases or giving airtime to attorneys. However, courts can place some limits on media coverage of a trial. Further, lawyers have been subject to limitations on their speech, and the U.S. Supreme Court has upheld state ethical limitations on what lawyers may say publicly regarding a pending or anticipated proceeding.⁶ The biggest concern here is the lawyer inadvertently (or intentionally) divulging client confidences in return for profit and possibly revealing strategies in the middle of a case. In a review of Michigan’s limitations, let’s begin with Michigan Rule of Professional Conduct (MRPC) 1.6(b), which states that “[e]xcept when permitted under paragraph (c), a lawyer shall not knowingly: (1) reveal a confidence or secret of a client; (2) use a confidence or secret of a client to the disadvantage of the client; or (3) use a confidence or secret of a client for the advantage of the lawyer or of a third person, unless the client consents after full disclosure.” None of the exceptions in MRPC 1.6(c) would authorize a lawyer’s use of client information that falls under the MRPC 1.6 provisions in a book or interview.

The next provision we need to look at is MRPC 3.6.^{7, 8} MRPC 3.6(a) states that “[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Further, MRPC 3.6(b) provides that “a lawyer who is participating or has participated in the investigation or litigation of a matter may state without elaboration” certain details as stated within the rule (emphasis added).

MRPC 3.6 prohibits certain statements from being made and publicly disseminated to preserve “the right to a fair trial” and “sets forth a basic general prohibition against a lawyer making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding.”⁹ Further, “the rule applies only to lawyers who are, or who have been, involved in the investigation or litigation of a case, and their associates”¹⁰ (emphasis added). It should be noted that a provision regarding statements made by prosecutors is covered under MRPC 3.8(e), which provides that a prosecutor must “exercise reasonable care to prevent investigators, law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6.”

Further, MRPC 1.8(d) states that “[p]rior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.” While Rule 1.8(d) does not prevent a lawyer from negotiating media rights once the representation is concluded, lawyers need to be aware and concerned about violating Rule 1.6 on confidentiality during those media negotiations. For example, in Pike v. State of Tennessee, the petitioner asserted that a conflict of interest existed due to the petitioner releasing media rights to their lead and co-counsel regarding her story.¹¹ Lead counsel spoke with the petitioner’s family regarding authoring a book about the petitioner’s life and criminal prosecution. The petitioner was found guilty and sentenced to death but prior to her appeal, she signed a release giving her attorney permission to retell her story but was “limited to information which is public information, e.g., evidence at trial and in my court file, and their own personal experiences while working on (the Petitioner’s) behalf.”¹² It also acknowledged that the attorneys may “eventually gain a pecuniary benefit from the retelling” of the story.¹³

The court found that per Rule 1.8(a) of the Tennessee Rules of Professional Conduct, a lawyer must not enter into a transaction or interest that may negatively affect a client “unless there is full disclosure, the client is given the opportunity to seek independent counsel, and the agreement is in writing and signed.”¹⁴ Further, the court found that “[g]enerally an agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict of interest between the attorney and the client”¹⁵ (emphasis added). It should be noted that the court further found that the client must also prove “that the conflict of interest adversely affected his counsel’s performance.”¹⁶

Discussing or writing about a past client is not just about the right of publicity. If a lawyer is discussing or writing about a matter that can still be appealed, where a new trial may be requested, where new evidence could be found, or where attorney-client privilege may be included, written consent from the client is critical. Even if those time frames have passed, attorneys have a duty to former clients to maintain confidences. “Loyalty is an essential element in the lawyer’s relationship to a client”¹⁷ and does not end when the representation ends. It continues even after death.¹⁸ “When transmitting a communication that contains confidential and/or privileged information relating to the representation of a client, the lawyer should take reasonable measures and act competently so that ... client information will not be revealed to unintended third parties.”¹⁹

Lawyers may argue, as we routinely do, that we should be able to write a book or provide an interview with only generally known information.²⁰ However, this can be a slippery slope. Even with the best intentions, lawyers may let slip knowledge that is not generally known such as a meeting with an unknown associate or the location of certain documents.

We can’t know when a highly publicized case will come through our door or which cases will grab the media’s attention. Preparing to handle reporters or publishers in an ethical and professional manner will lead to a trusted relationship with clients. Lawyers must be cautious of getting involved with the media for the sake of publicity. The primary duties are to the client and the justice system. If a lawyer decides he or she wants to explore a career path as a storyteller, they must recognize that the Michigan Rules of Professional Conduct limit how the lawyer can proceed.