Advice Versus Defense

Advice Versus Defense

Rule 1.6(b) gives a lawyer two self-protective exceptions that students routinely blur, because both let the lawyer reveal client information for the lawyer's own benefit and both stop at what the lawyer reasonably believes necessary. Paragraph (b)(4) permits disclosure “to secure legal advice about the lawyer's compliance with these Rules.”¹ Paragraph (b)(5) permits disclosure to establish a claim or defense in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the representation.² The event that opens each door separates them. A question about what the Rules require opens the first, and an assertion against the lawyer opens the second. To sort a fact pattern, ask first whether anyone has asserted a controversy, charge, claim, or allegation against the lawyer.

Three contrasts follow from the wording of the two paragraphs:

• On trigger, paragraph (b)(4) needs only a genuine question about the lawyer's own compliance with the Rules, while paragraph (b)(5) needs a controversy with the client, a criminal charge or civil claim, or allegations in a proceeding, each aimed at the lawyer who wants to disclose.
• On audience, paragraph (b)(4) sends information to another lawyer who can give advice, while paragraph (b)(5) sends it to whoever must receive it for the lawyer to pursue or answer the matter, such as the forum where the matter is pending or the lawyer's own defense counsel.
• On timing, paragraph (b)(4) is available before any dispute forms and at every later stage, while paragraph (b)(5) becomes available only when the controversy, charge, claim, or proceeding exists.

The difference in trigger reflects a difference in risk to the client. Information a lawyer shares to obtain legal advice is itself treated as confidential under Rule 1.6(a), so an early consultation keeps the client's confidences inside a protected relationship.³ Because that risk is low and the benefit is a lawyer who avoids a violation, the rule can permit the consultation before anyone accuses anyone of anything. A defense disclosure carries client information toward an adversary or a tribunal, where the client controls nothing, so the permission is tied to an actual assertion against the lawyer. That tie also gives the lawyer an objective reason to speak, in place of the lawyer's own unease.

The two exceptions often arrive in sequence within a single dispute. A lawyer who senses trouble first asks what the Rules require. The rule expressly authorizes revealing confidential information to secure another lawyer's advice about compliance, which includes advice on the permissions and obligations that govern disclosure itself.⁴ If the client later asserts an adversarial claim, the lawyer's need shifts from advice to defense. The Massachusetts court in RFF Family Partnership LP v. Burns & Levinson, deciding whether a conflict should be imputed to a firm's in-house counsel, said that a law firm facing an adversarial claim from its own client has a right to defend itself even to the point of disclosing information the client gave in confidence, and it cited Rule 1.6(b)(5) of the ABA Model Rules for the point.⁵ The court added that even if imputation barred the in-house lawyers from representing the firm, the firm could still reveal confidential client information to outside counsel where necessary to its own defense.⁶ A lawyer who is already being sued may still need the first kind of disclosure, for instance to ask whether withdrawal is required, so the exceptions do not replace one another. Each disclosure is tested against its own purpose.

The usual exam error runs the other way: it treats any sign of client displeasure as the event that opens the self-defense exception.

The review is a public comment, and the text of paragraph (b)(5) asks for more. Each of its three clauses presupposes something aimed at the lawyer: a controversy between lawyer and client, a criminal charge or civil claim based on conduct in which the client was involved, or allegations in a proceeding concerning the representation.⁷ An unflattering post fits none of them. The lawyer's remedy is the one the first door already offers, a consultation about how to respond, and that is also when an objective outside view helps most, since a lawyer who learns of a possible claim may react at first with anger, denial, shame, or fear.⁸ A later section develops the online-review problem in full. A formal proceeding concerning the same events, such as a disciplinary complaint, would change the analysis, because the rule reaches allegations in any proceeding concerning the representation, and the lawyer could then answer them with the information reasonably necessary to do so.

Because the advice exception requires no accusation, a lawyer who senses a possible claim need not wait for one before getting help. Experts recommend retaining an adviser who concentrates on legal ethics and malpractice, who can help the lawyer evaluate the situation objectively and plan a course of action.⁹ Except in an emergency, a lawyer is well advised to consult respected lawyers before taking the momentous step of revealing a client confidence without the client's consent.¹⁰ That order protects the lawyer, because advice about the Rules covers advice about when they permit disclosure, so the first door is also the safe way to learn whether the second has opened.¹¹ A lawyer who guesses wrong has already revealed the confidence, and nothing recalls it. One caution travels with the advice: internal memoranda and similar documents may later be discoverable, so the lawyer should follow the adviser's guidance about what to put in writing.¹²