CI-569

September 22, 1980

SYLLABUS

A lawyer may reveal confidences and secrets of a client, or former client, when necessary to explain his or her conduct (including employees or associates) before a court or other tribunal having jurisdiction over a pending matter and then only to the extent absolutely necessary to respond to the inquiry.

References: DR 4-101 (C) (4)

TEXT

Your request for an Informal Ethics Opinion, addressed to the State Bar of Michigan, Professional and Judicial Ethics Committee, has been referred to me for a response.

You state that you represented a client, in a criminal matter, in the Circuit Court. During the trial your client, acting upon your advice, entered a guilty plea and a no contest plea in exchange for a sentence guarantee. Thereafter, the client filed an Affidavit with the Michigan Court of Appeals, alleging (1) gross misconduct upon your part; and (2) the client had absolutely no recollection or knowledge of committing any crime acts whatsoever due to the consumption of alcohol and drugs. You state that you have, in your possession, a letter written by your client prior to trial which, in your opinion, "would completely refute his claim to being unable to recall events due to alcohol and drugs." You wish to know your rights and duties with respect to your former clients allegations in the Affidavit addressed to the Court of Appeals and, specifically, under what circumstances you may release the contents of the letter.

Communications between an lawyer and his or her client, which are made because of their relationship and concerning the subject matter of the attorneys employment, are generally confidential and privileged from disclosure without the consent of the client, and this duty to preserve client confidences and secrets extends beyond the duration of the lawyer's employment, with certain exceptions enumerated in DR 4-101 (C), which reads, in part, as follows:

"(C) A Lawyer may reveal:

(4) Confidences or secrets necessary to establish or collect his or her fees or to defend him or herself or his or her employees or associates against an accusation of wrongful conduct." DR 4-101 (C) (4). Emphasis added.

The self-defense exception of DR 4-101 (C) (4) has been the subject of considerable debate. Some critics advocate that the attorney's obligation to the client ends when "things begin to get hot for the lawyer personally." See The Evolving Concept of Professional Responsibility, 90 Harv. L. Rev. 702, 739 (1977). The better approach, which the Committee adopts, authorizes disclosure only in the event of an actual controversy between a lawyer and a present or former client. This would limit the disclosure of confidences and secrets to the extent necessary to defend an lawyer or his/her employees or associates when called upon to explain his or her conduct before a court or other tribunal having jurisdiction over a pending matter.

We emphasize that the nature and extent of the disclosure is to be limited to that absolutely necessary to respond to the inquiry!

While this opinion has been prepared by the undersigned, it has been circulated to other members of the Committee for their concurrence prior to its release to you.