In a hearing on his attorney's lien, can a lawyer reveal privileged client information to prove his fee claim and rebut a charge that he hurt the clients' case, even if it damages the former clients?

Plain-English summary

The committee framed the issue as whether the attorney-client privilege could be used as a sword instead of a shield. A group of clients retained the inquiring lawyer to represent them in buying real property, and when the seller refused to convey, the lawyer sued for specific performance. The clients were told from the start they would have to allege and prove their ability to pay at closing. Shortly before final hearing, the clients said they could not raise the closing funds and asked for more time; the case was continued for another reason. The clients then disagreed among themselves and indicated they wanted to conceal from the court their inability to tender closing funds and proceed anyway. After the clients failed to attend a meeting and some consulted other counsel, the lawyer advised of his intention to withdraw, the court granted permission, and the lawyer billed his former clients and sought a lien in the pending action. New counsel moved to deny the lawyer a charging lien, alleging that he had hindered prosecution of the cause.

The court ruled it would hear testimony on the right to the lien before reaching the merits. The first attorney advised that he would have to reveal matters otherwise protected by the privilege to establish his claim and defend against the accusation, and that those matters might be detrimental to his former clients on the merits; he asked new counsel to withdraw the charges so he could pursue compensation separately, but they refused and said they would rely on the privilege. The committee unanimously concluded that the lawyer may reveal the true situation, holding DR 4-101(C)(3) controlling. It said the fact that his testimony might jeopardize his former clients' recovery on the merits was a by-product removed from his control, and that the admissibility of the testimony would be passed upon by the court.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.6 and 4-1.9 before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer use confidential client information to collect his fee?

A: Under this opinion, in a hearing on his attorney's lien, yes. The committee held that the lawyer could reveal otherwise-privileged matters to establish his lien claim, relying on DR 4-101(C)(3).

Q: Could the lawyer also use confidences to defend himself against the accusation that he hurt the case?

A: Yes. The opinion permitted disclosure both to establish the lien and to defend against the charge that he had hindered the clients' cause.

Q: What about the harm to the former clients?

A: The committee said the risk that the testimony might jeopardize the former clients' recovery on the merits was a by-product removed from the lawyer's control, and that admissibility would be decided by the court.

Background and rules framework

The opinion applied DR 4-101(C)(3) of the former Code of Professional Responsibility, which allowed a lawyer to reveal confidences to collect a fee or defend against an accusation of wrongful conduct. In current Florida practice the confidentiality rule and its self-defense and fee-collection exceptions are in Rule 4-1.6, with duties to former clients in Rule 4-1.9; the Model Rule analogues are Rules 1.6 and 1.9.

Citations and references

Rules of Professional Conduct:

• CPR DR 4-101(C)(3) (disclosure to establish a claim or defense)

See also

• FL Bar Ethics Op. 71-67: Levying on a Client's Safekept Stock for Unpaid Fees
• FL Bar Ethics Op. 72-40: Client Confidences and the Executor Bank
• FL Bar Ethics Op. 72-43: Assigning a Client's Fee Account

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-60/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-60-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 71-60
December 10, 1971
Advisory ethics opinions are not binding.
During a court hearing on his right to an attorney's lien, an attorney may reveal matters otherwise privileged in order to establish his claim and to defend himself against an accusation he had hindered the clients' cause, even though his testimony may be detrimental to his former clients' interests on the merits.
CPR: DR 4-101(C)(3)
Chairman Clarkson stated the opinion of the committee:
The issue raised by this ethics inquiry might well be phrased whether the attorney-client privilege can be used as a sword instead of a shield.
A group of individuals retained the inquiring lawyer to represent them in the purchase of real property. When the seller refused to convey, the lawyer brought an action for specific performance. The clients were advised from the beginning that they would be required to allege and prove their ability to pay the funds due at closing.
Shortly before the date set for final hearing in the cause, the clients informed their attorney that they were not able to raise the money necessary to close and requested additional time. The case was continued for another reason. Thereafter, the clients became involved in disagreement as to their individual rights and duties. During the period of disagreement they indicated to the lawyer that they would like to conceal from the court their inability to tender closing funds and proceed with the cause anyway.
To resolve pending difficulties, the lawyer scheduled a meeting of all the clients, but none appeared. Upon learning that some of them were consulting other counsel, the lawyer wrote the group and advised of his intention to withdraw. Ultimately, the court granted permission to withdraw and the lawyer, after first submitting a bill for legal services to his former clients, sought a lien in the pending action. New counsel, although having been made aware of his clients' inability to produce closing funds and of their conflicting positions, filed a motion to deny the first attorney a charging lien, alleging that he had hindered prosecution of the cause rather than advancing it.
The court ruled that it would hear testimony on the right to an attorney's lien before proceeding with the merits of the action. The initial attorney has advised the court and new counsel that he will be compelled to reveal matters otherwise protected by the attorney-client privilege in order to establish his claim and defend himself against the accusation of detrimental conduct. He has also stated that such matters may be detrimental to his former clients' interests on the merits. Because of these circumstances he has asked new counsel to withdraw the charges of improper conduct so that he may proceed to establish his right to compensation in a separate action. Nonetheless, the new attorneys refuse to withdraw their allegations and have stated their intention to rely upon the attorney-client privilege in defending against the lien.
Under the facts as stated we are asked whether the first attorney may reveal the true situation to the court in order to establish his right to an attorney's lien and to defend himself against the charges of improper conduct.
The Committee unanimously concludes that he may do so. DR 4-101(C)(3) is controlling. The fact that his testimony may jeopardize his former clients' right to recover on the merits is a by-product removed from his control. Of course, admissibility of the testimony will be passed upon by the court.