Can a lawyer facing possible indictment as a co-defendant with a former client reveal the client's confidences to convince the prosecutor not to indict him?
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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer who had been notified he was a target of a government investigation, facing possible indictment as a co-defendant with a former client, asked whether he could reveal the former client's confidential information to convince the prosecutor he had not been involved in any crime, without violating DR 4-101.
The committee concluded he could, under the self-defense exception in DR 4-101(C)(4), which permits revealing confidences or secrets "to defend himself or his employees against an accusation of wrongful conduct." It read that exception to apply whether the accusation came from the client or from a third party such as the government, because the rule was phrased generally and the underlying policy, that a principal should not be able to bar the agent from defending against a charge of misconduct in carrying out the principal's business, applied either way. The committee found support in the SJC rules committee's recommended Rule 1.6(b)(2), which permits disclosure to establish a defense to a criminal charge based on conduct in which the client was involved. It also held the exception reached a threatened indictment, reading "accusation" to include being named a target of a government investigation.
The committee added two limits. First, repeating its Opinion 96-3, it said disclosure should be limited to the information "necessary" to defend. Second, on whether the lawyer should warn the former client before disclosing, so the client could object to over-broad revelation, it found the Disciplinary Rules silent. Quoting proposed Comment 19A to Rule 1.6, it explained that no absolute rule was possible: advance notice is sometimes impractical or even dangerous and could defeat the purpose of the exception, but in some cases, such as turning whole files over to prosecutors, the absence of notice would prevent the client from objecting in time. The lawyer had to weigh loyalty, competent practice, and the policy behind the exception against the full factual context to decide.
Currency note
This opinion was issued in 1996, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Could the lawyer reveal a former client's confidences to avoid being indicted?
A: The committee concluded he could, under the self-defense exception in DR 4-101(C)(4), revealing only the information necessary to convince the prosecutor he had committed no crime.
Q: Did the exception apply to a threatened, not-yet-filed, indictment?
A: Yes. The committee read "accusation" in DR 4-101(C)(4) to include being notified that the lawyer was a target of a government investigation, so disclosure could be used to head off a threatened indictment.
Q: Did the lawyer have to warn the former client first?
A: The committee found no clear rule. Quoting proposed Comment 19A to Rule 1.6, it said advance notice is sometimes impractical or dangerous and sometimes necessary, so the lawyer had to weigh the competing policies against the facts.
Background and rules framework
The opinion applied the predecessor disciplinary rule DR 4-101(B) and (C)(4) (confidentiality and the self-defense exception), corresponding to Model Rule 1.6 (confidentiality and its self-defense exception). The committee relied on the SJC rules committee's recommended Rule 1.6(b)(2) and proposed Comment 19A, and on its Opinions 96-3 and 90-2.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.6 / DR 4-101(B), (C)(4) (confidentiality; self-defense exception)
Cases:
- Commonwealth v. Woodbury, 26 Mass. App. Ct. 636 (1988) (disclosure limited to what is necessary)
- Commonwealth v. Brito, 390 Mass. 112 (1983) (same)
Other opinions cited:
- MBA Opinion 96-3 (limiting self-defense disclosure to information necessary)
- MBA Opinion 90-2 (urging a former client to disclose before the lawyer does)
See also
- MA Bar Ethics Op. 99-5: Joint clients and a theft from the estate
- MA Bar Ethics Op. 05-06: Reporting a client's partner to police
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