When a client sues over the quality of a lawyer's representation, what client confidences may the lawyer reveal to defend itself, and does it matter that the lawyer still represents the client on another matter?

Plain-English summary

Insurance Company A hired law firm N to represent client Z in a lawsuit, under a reservation of rights because A contended some claims were not covered. Z also retained private counsel, and the suit settled. Z then sued A for, among other things, alleged inadequate representation by firm N. The inquiry asked what confidences of Z firm N could reveal to A, and whether the answer changed because firm N still represented Z to get an escrow agreement signed as part of the settlement.

The opinion applied Rule 4(c)(5), which lets a lawyer reveal confidential information to the extent the lawyer reasonably believes necessary to respond to allegations in any proceeding concerning the lawyer's representation of the client. It concluded the suit between A and Z was a proceeding concerning firm N's representation, and that N need not be a party for the exception to apply. Firm N could therefore reveal confidences to the extent necessary to clear its name of the inadequate-representation charge, while taking care not to reveal confidences unnecessary to its defense. Because the exception applies to both current and former clients, firm N could reveal confidences necessary to defend itself even while still representing Z on the escrow matter.

Currency note

This opinion was issued in 1989, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provision it applies (Rule 4(c)(5), the self-defense exception to confidentiality) has since been renumbered and revised (the corresponding Model Rule is 1.6). 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 Treat this page as historical context, not current guidance.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 reveal client confidences to defend against a claim about the lawyer's representation?

A: Yes, within limits. The opinion concluded the self-defense exception permits revealing confidences to the extent necessary to answer the charge, and no more.

Q: Does the lawyer have to be a named party to the suit?

A: No. The opinion concluded the exception applied because the suit was a proceeding concerning the lawyer's representation, whether or not the firm was a party.

Q: Does it matter that the lawyer still represents the client on another matter?

A: No. The opinion concluded the exception applies to both current and former clients, so continuing to represent the client on the escrow matter did not bar the disclosure.

Background and rules framework

The opinion applied North Carolina Rule 4(c)(5), the self-defense exception to the duty of confidentiality, permitting disclosure necessary to respond to allegations in a proceeding concerning the lawyer's representation (corresponding to Model Rule 1.6). The analysis turned on reading "proceeding concerning the lawyer's representation" to reach a suit in which the lawyer's competence was placed in issue even without the lawyer as a party.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 4(c)(5) (disclosure to respond to allegations about the representation)
• MR 1.6 (confidentiality; self-defense exception)

See also

• NC Ethics Op. RPC 77: disclosure of confidential information to liability insurer
• NC Ethics Op. RPC 120: reporting child abuse

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-62/

Original opinion text

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

Inquiry:

Insurance Company A hired law firm N to represent client Z in a lawsuit. This representation of Z was provided under reservation of rights, since Insurance Company A contended that various claims in the complaint against Z were not covered by its policy. Z also retained private counsel. Eventually, the lawsuit was settled. Thereafter, Z sought to recover damages against Insurance Company A for, inter alia, alleged inadequate representation of Z by law firm N. What confidences of Z, if any, may law firm N reveal to Insurance Company A? Does the answer change if law firm N is still representing Z for the purpose of getting an escrow agreement signed as part of the settlement of the original lawsuit?

Opinion:

Rule 4(c)(5) provides that an attorney may reveal confidential information "to the extent the lawyer reasonably believes necessary…to respond to allegations in any proceeding concerning the lawyer's representation of the client."

The lawsuit between Insurance Company A and Z is a "proceeding concerning the lawyer's representation" of N. It is not necessary that law firm N be a party to the suit. Law firm N may therefore reveal confidences to the extent necessary to clear its name of the charge of inadequate representation, but should take care not to reveal confidences that are not necessary to its defense. The Rule 4(c)(5) exception to the confidentiality rule applies both to current and former clients. Therefore, law firm N may reveal confidences necessary to defend itself, even if it is representing Z in the escrow agreement matter.