Can a lawyer disclose communications with a former client, by court-ordered affidavit, when that client claims the lawyer failed to file a requested appeal?

Plain-English summary

A lawyer represented a client in a criminal case; the client was convicted and sentenced. After beginning his sentence, the client moved pro se for an out-of-time appeal, alleging that the lawyer had failed to appeal as requested. The trial court ordered the lawyer to submit an affidavit about his discussions with the client concerning an appeal. The lawyer asked whether he could reveal those communications without violating the Rules of Professional Conduct.

The opinion concluded he could, on two grounds. First, Rule 1.6(b)(6) permits a lawyer to reveal confidences or secrets when required by law or court order, a point the Committee tied to its earlier Opinion No. 95. Second, Rule 1.6(b)(5) permits disclosure to the extent the lawyer reasonably believes necessary to establish a claim or defense in a controversy between the lawyer and the client. The opinion read that self-defense exception to apply not only when the lawyer is a party, but in any judicial proceeding where the lawyer is accused of wrongful conduct, observing that it would be incongruous for a client to allege misconduct or incompetence and then seal the lawyer's lips.

The Committee concluded the lawyer may be required by court order to reveal communications with his client where the client has accused him of wrongful conduct.

In practice

Under this opinion, a Mississippi lawyer ordered by a court to provide an affidavit about client communications may comply where the client has put the lawyer's conduct at issue, the disclosure resting on Rule 1.6(b)(6) (required by law or court order) and Rule 1.6(b)(5) (self-defense against a client's accusation). The opinion frames the self-defense exception as applying whenever the lawyer is accused of wrongful conduct in a judicial proceeding, not only when the lawyer is a named party.

Common questions

Q: Can a lawyer disclose client confidences when a court orders it?

A: Per this opinion, yes. Rule 1.6(b)(6) permits revealing confidences or secrets when required by law or court order.

Q: Can a lawyer respond when a former client claims he botched the case?

A: Yes. The opinion applies Rule 1.6(b)(5)'s self-defense exception to any judicial proceeding where the lawyer is accused of wrongful conduct, not just when the lawyer is a party.

Q: How much can the lawyer reveal?

A: The opinion ties disclosure to what the exceptions allow: what a court order requires, and, under Rule 1.6(b)(5), what the lawyer reasonably believes necessary to establish his defense.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.6 (confidentiality of information, the analog of Model Rule 1.6), specifically the exceptions in Rule 1.6(b)(6) (disclosure required by law or court order) and Rule 1.6(b)(5) (self-defense in a controversy between lawyer and client). It reads the self-defense exception together with the Committee's prior Opinion No. 95.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Mississippi Rule 1.6: confidentiality of information, including the court-order exception (Rule 1.6(b)(6)) and the self-defense exception (Rule 1.6(b)(5)).

Other opinions cited:

• Mississippi Ethics Opinion No. 95: disclosure of confidences or secrets when required by law or court order.

See also

• MS Bar Ethics Op. 218: Joint Defense Conflict
• MS Bar Ethics Op. 128: Suing a Former Client's Spouse
• MS Bar Ethics Op. 131: Representing a Former Adversary

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/124/
• Original PDF: https://www.msbar.org/media/1031/et_op_124-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 124

OF THE MISSISSIPPI BAR

RENDERED September 05, 1986

AMENDED April 06, 2013

CLIENT CONFIDENCES - An attorney may reveal communications with his client when required by court order and the lawyer is accused of wrongful conduct.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following facts:

A lawyer represented a client in a criminal case. After a trial, the client was convicted and sentenced to the Mississippi Department of Corrections. After commencing his sentence, the client moved pro se in the trial court for an out-of-time appeal, and alleged that his lawyer failed to appeal his conviction as he requested. In considering the motion, the court ordered the lawyer to submit an affidavit concerning his discussions with the client concerning an appeal.

Without violating Mississippi Rules of Professional Conduct (MRPC), may the lawyer reveal communications with his former client in an affidavit required by court order?

This inquiry is governed, in part, Rule 1.6(b)(6), MRPC, which provides that a lawyer may reveal confidences or secrets when required by law or court order. See also Ethics Opinion No. 95 of The Mississippi Bar.

Additionally, in this situation, the work and conduct of the lawyer has been attacked by the client. Rule 1.6(b)(5) states that lawyer may reveal such information to the extent the lawyer reasonably believes necessary to establish a claim of defense on behalf of the lawyer in a controversy between the lawyer and the client. This exception is not limited to proceedings in which the lawyer is a party; it should apply in any judicial proceeding where the lawyer is accused of wrongful conduct. It would appear incongruous for a client to allege misconduct or incompetence of a lawyer and then have the lips of that lawyer sealed. Fairness should require a full exploration of facts surrounding a lawyer's work for a convicted client.

The committee is, therefore, of the opinion that a lawyer may be required by court order to reveal communications and discussions with his client when the client has accused the lawyer of wrongful conduct.