The Self-Defense Exception to the Duty of Confidentiality
1. Your client sues you for malpractice, claiming that
you failed to accept an offer for settlement from opposing counsel before
it was withdrawn. In fact, the client indicated doubts about whether
the offer should be accepted. You reasonably waited until the client
resolved his doubts before trying to accept. May you reveal this confidential
information in the malpractice action? Once the malpractice action
has been brought, may you reveal this information to your friends in order
to exculpate yourself in their eyes? If the client simply publicly
accuses you of malpractice but does not sue you, may you reveal this information
in order to exculpate yourself in the eyes of the public?
2. Why did Goldberg disclose information to the SEC in the Meyerhofer case? Was it self-defense or the revelation of a client’s intention to commit a crime (which was allowed under MC DR 4-101(C)(3), then in effect in New York). If it was the former, is it correct for Goldberg to protect himself preemptively? In either case, shouldn’t Goldberg have determined whether his client, and not merely his law firm, was responsible for the securities fraud?
3. Doesn’t the permissibility of a lawyer’s revealing client confidences as a defense to third party accusations against the lawyer mean that the client’s confidences are at the mercy of these third parties? Shouldn’t there at least be a requirement that formal charges be brought against the lawyer?
4. What if Goldberg had thought only that lack of disclosure of the fees could be construed as illegal but probably was not illegal? Could he have pre-emptively revealed confidences to the SEC in order to dissociate himself from his firm’s and his client’s actions? Could he have revealed confidences to the Bergson firm in order to get himself dropped from the suit? Does the lawyer have to believe that the charge he is trying to defend himself against is valid? Does the charge actually have to be valid?
5. A client consults you about a business that you think amounts to an illegal Ponzi scheme. You inform him of this and refuse to represent him in connection with it. You later find out that he is pursuing the scheme anyway. May you use the self-defense exception to inform the victims of the scheme or to inform the authorities?