MTBAR March 1, 1989

Can a lawyer reveal client confidences to defend against a criminal accusation the client has made against the lawyer?

Short answer: Yes. The opinion concluded that Rule 1.6(b)(2)'s self-defense exception lets a lawyer reveal confidential information to establish a defense when the client accuses the lawyer of criminal conduct, disclosing no more than reasonably necessary, even before a charge is formally filed where a serious possibility of one exists.

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This page answers the general question as of 1989. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

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 Not binding precedent.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 on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The committee was asked whether an attorney may reveal confidential information when a client has accused the attorney of criminal conduct and both the attorney and client appear to be under investigation and may face possible criminal charges. It answered yes.

The committee applied Rule 1.6(b)(2), which permits a lawyer to reveal information the lawyer reasonably believes necessary to establish a claim or defense in a controversy between the lawyer and the client, to defend against a criminal charge or civil claim based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. Citing comments 17 and 18, it explained that where a lawyer is charged with complicity in a client's conduct or with wrongdoing, the lawyer has the right to disclose, but should make every effort to disclose no more than reasonably necessary to vindicate themselves. The committee added that there is authority allowing disclosure even before a charge or claim is actually filed where there is a serious possibility of one, citing Meyerhofer v. Empire Fire and Marine Insurance Company and In re Friend.

Currency note

This opinion was issued in 1989, before the State Bar of Montana's adoption of the 2004 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: Can a lawyer use client confidences to defend against the client's own accusation?

A: Yes. The opinion concludes Rule 1.6(b)(2) permits disclosure to establish a defense in a controversy between the lawyer and client, including a criminal charge based on conduct in which the client was involved.

Q: How much may the lawyer disclose?

A: The opinion states the lawyer should make every effort to disclose no more information than is reasonably necessary to vindicate themselves.

Q: Must a charge already be filed before the lawyer may disclose?

A: No. The opinion cites authority allowing disclosure even before a charge or claim is filed where there is a serious possibility of one.

Background and rules framework

The opinion interprets Montana Rule of Professional Conduct 1.6(b)(2) (Confidentiality of Information; self-defense exception; Model Rule 1.6(b)), and its comments on a lawyer's right to disclose when charged with wrongdoing.

Citations and references

Rules of Professional Conduct:

Mont. R. Prof. Cond. 1.6(b)(2) (confidentiality; self-defense exception) / Model Rule 1.6(b)

Cases:

Meyerhofer v. Empire Fire and Marine Insurance Company, 497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998 (1975), disclosure to defend against a serious possible claim
In re Friend, 411 F. Supp. 776 (S.D.N.Y. 1975), lawyer self-defense disclosure

Source

Original opinion text

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

Ethics Opinion
QUESTION PRESENTED: May an attorney reveal confidential information when a client has accused the attorney of criminal conduct and where it appears that the attorney and client are under investigation and may face possible criminal charges?

ANSWER: Yes.

ANALYSIS: The Rules of Professional Conduct Rule 1.6(b)(2) provides:

(b) a lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representations of the client.

Comments 17 and 18 to this rule indicate that where a lawyer is charged with complicity in connection with a client's conduct, or is charged with wrongdoing, the lawyer has the right to make disclosure. Such comments further indicate that the lawyer should make every effort to disclose no more information than is reasonably necessary to vindicate himself/herself. In addition, there is authority to the effect that the lawyer may make disclosure even though a charge or claim has not actually been filed against the lawyer "where there is a serious possibility of a charge or claim . . ." See Meyerhofer v. Empire Fire and Marine Insurance Company, 497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998 (1975); In re Friend, 411 F.Supp. 776 (S.D.N.Y. 1975).

THIS OPINION IS ADVISORY ONLY

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