Ezel / Ethics Opinions / LACBA
LACBA 2007-02-26

May a California attorney sued by a third party disclose otherwise confidential or privileged client information in order to defend against the claim?

Short answer: No. California has no statutory self-defense exception to Bus. & Prof. Code section 6068(e) or to the attorney-client privilege; disclosure requires the client's informed consent, although a court may order limited disclosure or dismiss the action in extreme cases.
Currency note: this opinion is from 2007
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.
View original ethics opinion (PDF)

LACBA Ethics Opinion 519: Self-Defense Exception to Confidentiality in Third-Party Claims

Short answer: Under California law as analyzed in this opinion, an attorney sued by a third party (not the client) cannot disclose the client's confidential information or privileged communications to defend against the claim without the client's informed consent. California has no statutory analog to ABA Model Rule 1.6(b)(5)'s self-defense exception. A court may, on the attorney's application, order limited disclosure or dismiss the action against the attorney; that question remains open.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Los Angeles County Bar Association's view of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

The opinion analyzes whether California recognizes a self-defense exception that would let an attorney disclose client confidences to defend a third-party action (for example, a malpractice action brought by a non-client or a fraud action by a stranger). The committee concludes California does not, expressly contrasting California with ABA Model Rule 1.6(b)(5) and the federal courts that recognize such an exception.

The committee grounds its conclusion in Bus. & Prof. Code section 6068(e), which contains no carve-out for attorney self-defense, and in the Evidence Code's privilege provisions (sections 950 et seq.), which place waiver in the hands of the privilege holder under section 912(a). The opinion catalogs federal-court treatment (citing General Dynamics v. Superior Court (1994) 7 Cal.4th 1164 in the wrongful-termination context, Fox Searchlight Pictures v. Paladino (2001), and Dickerson v. Superior Court (1982)) and notes California's posture has not changed despite the federal trend.

The committee reserves the question whether a court may, on the attorney's application, fashion a limited disclosure order to permit a defense, or, in the alternative, dismiss the third-party action because the attorney cannot defend without using the client's information. The opinion treats that question as an unresolved matter of California procedure rather than an ethics issue.

The committee also distinguishes attorney self-defense in fee disputes between attorney and client, which is governed by separate exceptions reflecting the attorney's interest as a party, from defense against third-party actions.

In practice

The opinion holds that, under California law as it stood in 2007, an attorney sued by a third party cannot use the client's confidential information or privileged communications without the client's informed consent. Disclosure requires the client's consent; without it, the attorney's defense is limited to information that does not invade the duty of confidentiality.

This opinion predates California's November 1, 2018 rule revisions and is framed under former Rule 3-100. Current California Rule 1.6 continues to omit a general self-defense exception. The opinion's reservation about court-ordered limited disclosure remains an open procedural question in California courts.

Common questions

Q: I'm being sued by a non-client for fraud arising from work I did for a client. Can I use what the client told me to defend myself?

A: Per the opinion, no, without the client's informed consent. Bus. & Prof. Code section 6068(e) preserves the client's secrets and the privilege under Evidence Code sections 950 et seq. is the client's to waive, not the attorney's.

Q: California has no equivalent to ABA Model Rule 1.6(b)(5)?

A: Per the opinion, correct. The committee expressly notes the divergence and the federal trend toward recognizing a self-defense exception, neither of which California has adopted.

Q: Can the court order limited disclosure for my defense?

A: The opinion treats this as an unresolved question. The committee suggests the attorney may apply to the court for limited disclosure or for dismissal, but does not decide whether either remedy is available under California law.

Q: What about a fee dispute with my own client?

A: Per the opinion, fee disputes between attorney and client are a separate context, with the attorney participating as a party. The opinion's holding addresses only third-party claims against the attorney.

Q: Does the client's death matter?

A: The opinion does not specifically address this. Evidence Code section 954 provides for survival of privilege; the duty under section 6068(e) is generally treated as surviving the representation.

Background and rules framework

The opinion interprets former California Rule 3-100, Bus. & Prof. Code section 6068(e), and the Evidence Code's privilege provisions (sections 950 et seq., particularly section 912 on waiver). It contrasts this framework with ABA Model Rule 1.6(b)(5) and the federal cases recognizing a self-defense exception. The opinion engages California cases on the surviving duties to former clients (General Dynamics, Flatt, Fox Searchlight) and on the privilege framework (Commercial Standard Title, Glade, Dickerson).

Citations and references

Rules of Professional Conduct:

  • Former California Rule 3-100 (confidentiality)
  • ABA Model Rule 1.6(b)(5) (self-defense exception, not adopted in California)

Statutes:

  • Bus. & Prof. Code section 6068(e) (preservation of client secrets)
  • Evid. Code sections 950 et seq. (attorney-client privilege)
  • Evid. Code section 912 (waiver)

Cases:

  • General Dynamics v. Superior Court, 7 Cal.4th 1164 (Cal. 1994), in-house counsel wrongful termination
  • Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal.App.4th 294 (2001)
  • Flatt v. Superior Court, 9 Cal.4th 275 (Cal. 1994)
  • Dickerson v. Superior Court, 135 Cal.App.3d 93 (1982)
  • Commercial Standard Title Co. v. Superior Court, 92 Cal.App.3d 934 (1979)
  • David Welch Co. v. Erskine & Tulley, 203 Cal.App.3d 884 (1988)
  • Goldstein v. Lees, 46 Cal.3d 614 (Cal. 1975)
  • Glade v. Superior Court, 76 Cal.App.3d 738 (1978)
  • Brockway v. State Bar, 53 Cal.3d 51 (Cal. 1991)
  • Carlson, Collins, Gordon & Bold v. Banducci, 257 Cal.App.2d 212 (1967)
  • Dixon v. State Bar, 32 Cal.3d 728 (Cal. 1982)
  • Durdines v. Superior Court, 76 Cal.App.4th 247 (1999)
  • In re Scott, 29 Cal.4th 783 (Cal. 2003)

See also

Source