Claims and Defenses Exception

Rule 1.6(b)(5) lets a lawyer who is under attack answer the attack. It permits the lawyer to reveal information relating to the representation in three situations: to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client; to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved; and to respond to allegations in any proceeding concerning the lawyer's representation of the client.¹ The advice exception in the preceding sections serves a lawyer who is asking a question about the Rules. This one serves a lawyer who is being accused. Each of its three permissions has its own trigger, so a fact pattern must be matched to the right clause before the exception can be applied.

The exception exists because an accused lawyer holds the evidence but is bound to silence. When a client charges a lawyer with overbilling or neglect, the facts that answer the charge are what the client was told, what the client instructed, and what the lawyer did in response. Each is information relating to the representation, and Rule 1.6(a) alone would keep the lawyer from revealing it. The accuser could then invoke the lawyer's duty of silence as a shield while the lawyer defended with one hand tied behind the back. The exception puts the lawyer on equal footing. The same bind appears when a prosecutor charges a lawyer with complicity in a client's crime, and when a tribunal examines the representation itself.

The three clauses answer three ways a lawyer can be put on the defensive:

The first clause covers a controversy between the lawyer and the client, the setting in which the client is the opposing party.
The second clause covers a criminal charge or civil claim based upon conduct in which the client was involved, which reaches accusations from third parties and the government.
The third clause covers allegations in any proceeding concerning the representation, which reaches settings in which the lawyer's handling of the client's matter is itself the subject.

State rules phrase the same permission in their own words. In Fellerman v. Bradley, the New Jersey Supreme Court quotes New Jersey's RPC 1.6(c)(2) as permitting disclosure to establish a claim or defense in a controversy between lawyer and client, or to establish a defense to a criminal charge, civil claim or disciplinary complaint against the lawyer based upon the conduct in which the client was involved.² That formulation placed the disciplinary complaint inside the second clause. The Model Rule text reaches disciplinary matters through its third clause instead, which covers any proceeding concerning the representation.³

Three points carry through the subsections that follow. States number this exception differently, so identify it by what it permits; the Model Rule paragraph is (b)(5), and New Jersey's version sits at RPC 1.6(c)(2). The exception is permissive: the lawyer may disclose, and nothing in it requires disclosure. And it reaches only what the lawyer reasonably believes necessary, a limit that appears in Ohio's version of the rule, which adds that the permission extends to information protected by the attorney-client privilege.⁴ Later sections take up how far that limit runs and whether the evidentiary privilege lets the lawyer use the same information. The first clause comes next, and it covers the dispute in which the client itself is the adversary.

Controversies With the Client

The first clause covers the dispute in which the client stands across from the lawyer. It permits a lawyer to reveal information relating to the representation "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client."⁵ The clause says "claim or defense," so the lawyer may be the plaintiff collecting a fee or the defendant answering the client's accusation. Two disputes fit so often that they define the clause. In a fee dispute, the lawyer proves what services were rendered and what they were worth. In a malpractice or breach-of-duty claim, the lawyer proves what was done and why it was reasonable.

The reason is who holds the evidence and who started the fight. A client who sues over the representation, or who refuses to pay and puts the quality of the work in issue, makes the lawyer's own record decisive: what the client asked for, what the lawyer advised, what the lawyer did. Rule 1.6(a) alone would forbid revealing any of it, and the client could press the claim like a sword while holding the duty of silence like a shield. The Ohio Supreme Court rejected that arrangement for the evidentiary privilege. Quoting a federal decision, it wrote that the attorney-client privilege "cannot at once be used as a shield and a sword," so a client may not rely on attorney-client communications to establish a claim against the attorney while asserting the privilege to prevent the attorney from rebutting it.⁶ The same court noted that Comment [11] to its rule lets a lawyer prove the services rendered in an action to collect a fee, and that this aspect of the rule "expresses the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary."⁷ The lawyer holds the client's confidences as a fiduciary, and a client who attacks the lawyer cannot turn that trust into a disability for the one who was trusted.

Squire Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. shows the clause at work. A law firm sued its former client in a fee dispute, and the client asked for a stay of that suit until separate litigation over a butter-flavoring product concluded, arguing that revealing its confidences would jeopardize its defense in the other case. The trial court denied the stay, and the court of appeals upheld the denial on the grounds that it was not a final, appealable order and was not an abuse of discretion.⁸

The court's main holding was that Ohio recognizes a self-protection exception that lets an attorney testify about attorney-client communications when necessary to establish a claim for legal fees or to defend against a charge of malpractice or other wrongdoing in litigation between the attorney and the client.⁹ In an action that calls the fees into question, the privilege does not stop an attorney from testifying to the correctness, amount, and value of the services rendered.¹⁰ The court confirmed that its holding fit Ohio's Rule 1.6(b) and Comments [10] and [11], which let a lawyer respond to a client's allegation that the lawyer committed a wrong and prove the services rendered in an action to collect a fee.¹¹ One clause therefore covered fee collection and malpractice defense alike.

Two cautions keep the case in proportion. It is mainly a decision about the evidentiary privilege, though the Ohio rule it quoted extends the permission to information protected by the privilege.¹² Whether a lawyer may disclose under the ethics rule and whether the lawyer may testify over a privilege objection are separate questions, taken up in the last section of this chapter. And the exception reaches only what the lawyer reasonably believes necessary, a limit developed in the sections on limiting the disclosure.

Students are tempted to read this clause as a license whenever a lawyer is in litigation of any kind. The text does not support that reading, because the clause is anchored to a controversy between the lawyer and the client. The identity of the opposing party decides the question.

The exception borrows its force from the client's own role in the dispute. A client who sues the lawyer, or who withholds payment and contests the work, has made the representation the subject of the fight, and the exception follows the client into it. A landlord's quarrel with the lawyer creates no such link, and nothing about the client's conduct makes the client's information fair game.

Defenses Tied to Client Conduct

The second clause covers the accuser who is not the client. It permits a lawyer to reveal information relating to the representation to establish a defense to "a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved."¹⁴ In a controversy with the client, the client is the opposing party and has put the representation in issue. Here the accuser is a prosecutor or a private plaintiff, and the client may be a co-defendant, a witness, or a bystander. What ties the clause to the client is the subject of the accusation: the charge or claim must rest on conduct in which the client took part.

The clause removes a bind that follows from where the evidence sits. When a prosecutor charges a lawyer with helping a client's crime, or an injured third party sues a lawyer for assisting a client's wrongdoing, the facts that answer the accusation are what the client asked for, what the lawyer was told, and what the work involved. Those facts are the client's confidences, and Rule 1.6(a) alone would leave the lawyer silent while the accusation went uncontested. The clause's two parts do separate work. The words "criminal charge or civil claim against the lawyer" identify who is under attack and by what kind of accusation. The words "conduct in which the client was involved" supply the link to the representation, and without that link any lawsuit against a lawyer, over any subject, would open the files of every client the lawyer had ever served.

The link appears in two common settings. In the first, lawyer and client acted together on the matter in question, so an accusation against one is an accusation about the shared activity.

In the second setting, the lawyer may not have acted jointly with anyone, but the accusation against the lawyer flows from something the client did. A third party harmed by a client's fraud may sue the lawyer on the theory that the lawyer took part in it. Bolstered by the parallel exception under the ethics rules, courts have extended the privilege exception to a lawyer who must use confidential information to defend against a charge of wrongdoing by a third party, such as a lawsuit alleging fraudulent conduct in conjunction with the representation, and to a lawyer's response to a disciplinary complaint.¹⁵ The lawyer in that suit defends against a third party, and the facts of the defense come from the client's dealings.

Earlier self-defense cases show the same idea at work. Meyerhofer v. Empire Fire & Marine Insurance Co. was decided under the older Model Code language on self-defense, so it illustrates how the idea works without stating the current rule's text.

The requirement that the client was involved separates the covered accusations from the uncovered ones, and a pair of civil suits shows the difference.

The usual exam error is to treat every third-party accusation against a lawyer as enough, when the examiner has built the stem so that the accuser and the type of proceeding are right and the connection to client conduct is missing. The text asks about the conduct underlying the charge or claim. It does not ask whether the client is also a defendant or has complained about the lawyer, so a client who merely participated in the underlying events still supplies the required link.¹⁶ The clause also marks its border with its neighbors. When the client is the accuser, the first clause governs, and when the proceeding itself concerns the representation without a charge or claim against the lawyer, the third clause, taught next, does the work. As with every exception in paragraph (b), the lawyer may disclose but need not, and may reveal only what the lawyer reasonably believes necessary to the defense, a limit that later sections develop.¹⁷

Allegations in Any Proceeding

The third clause defines itself by subject rather than by adversary. It permits a lawyer to reveal information relating to the representation "to respond to allegations in any proceeding concerning the lawyer's representation of the client."¹⁹ The first two clauses ask who is attacking the lawyer: the client in the first, and a third party or the government, over conduct in which the client was involved, in the second. This clause asks only whether the proceeding concerns the representation. It therefore reaches a grievance before a bar disciplinary authority and a convicted defendant's claim that the trial lawyer was ineffective, even when the allegation fits neither of the first two clauses.

The clause is this broad because a lawyer called to answer for the work cannot answer without describing it. The profession preserves its integrity through an effective, regularly exercised means of self-regulation, including removal of those whose misconduct shows a lack of fitness.²⁰ That system works only if the accused lawyer can reply, so the permission does not depend on who brought the allegation or which forum hears it.

Disciplinary actions are the most common setting, and courts say so directly. Applying its version of the rule in Iowa Supreme Court Attorney Disciplinary Board v. Marzen, the Iowa Supreme Court observed that the comment to the rule makes clear that the ability to defend arises in criminal and civil proceedings, including disciplinary actions.²¹ Later sections take up how the disclosure is limited by forum and by extent. Courts have also carried the evidentiary privilege exception over to a lawyer's response to a disciplinary complaint, a question that belongs to the last section of this chapter and stays separate from the ethics rule here.²²

The paradigm is the lawyer who is the respondent to a bar complaint. A respondent may use confidential information when necessary to respond to the allegations in that proceeding, so a client's grievance that the lawyer neglected the case opens the door to the reasonably necessary facts about what the lawyer was asked to do and what the lawyer did.²³ The same permission applies when the setting is a criminal case that has already ended.

The clause protects the lawyer whose own conduct is under examination, and that explains the line an examiner is most likely to draw: the lawyer who is the respondent versus the lawyer who is only a witness.

The general rule matches the pair. A lawyer called as a witness in a disciplinary proceeding against another lawyer may not disclose confidential client information, either by affirmative statement or in response to a question, and a lawyer who appears only as a witness and is not charged with misconduct may not invoke the self-defense exception.²⁴ The reason follows from what justifies the exception. The need is the lawyer's need to defend, and a witness has no defense to make. The information also has another route, because the disciplinary authorities presumably could subpoena the client to obtain it directly.²⁵ Letting the witness speak would spend the client's confidences without protecting any interest of the lawyer.

Students lose points here by reading "any proceeding" as covering any lawyer who appears in one.²⁶ Those words describe the range of forums. The clause itself permits the lawyer to respond to allegations, which presupposes allegations aimed at that lawyer's own representation of the client. As with every exception in paragraph (b), the respondent may reveal only what the lawyer reasonably believes necessary to the response, so a lawyer answering a neglect complaint describes the matter complained of and leaves the client's unrelated confidences alone.²⁷