When a prosecutor threatens a lawyer with indictment, can the lawyer reveal a former client's confidences to clear himself?

Plain-English summary

Lawyer X had represented the ABC Company until his recent discharge. ABC's principals were indicted on conspiracy and obstruction charges, and the prosecutor told Lawyer X that he was himself the subject of a grand-jury investigation and that ABC employees had given information incriminating him. The prosecutor sought to interview Lawyer X about his conversations with ABC's principals, conversations that would tend to exculpate him while incriminating the principals, and offered use immunity. Lawyer X asked whether he could ethically disclose those confidences, whether his answer depended on the procedural posture (he had not been indicted or subpoenaed), and whether he had to tell the principals about the interview.

Proceeding on the assumptions that the information was gained in Lawyer X's capacity as attorney and constituted a confidence or secret under DR 4-101(A), the committee analyzed the self-defense exception in DR 4-101(C)(4), which allows a lawyer to reveal confidences necessary to defend himself against an accusation of wrongful conduct. The committee concluded that a lawyer need not wait for a formal accusation such as an indictment, summons, or disciplinary charge, because the cost and reputational harm of defending a formal charge argue against so restrictive a reading; but it cautioned that more than a whisper or suspicion of wrongdoing is required. On these facts, where the prosecutor reported that ABC employees had made incriminating statements, the committee found Lawyer X had been accused of wrongful conduct and was free to disclose, answering the second inquiry in the negative.

The committee added two limits. Disclosure must be no more extensive than necessary to establish Lawyer X's non-involvement, so he should not reveal conversations the prosecutor had not asked about. And although Canon 4 contains no explicit notice requirement, the committee concluded the lawyer should notify the client of the intended disclosure unless there are compelling reasons not to, such as a reasonable belief the client would use the warning to continue or conceal wrongdoing or that notice would risk harm; neither exception applied here. It noted that informed-consent disclosure under DR 4-101(C)(1) or a court ruling under DR 4-101(C)(2) could also resolve the question.

Currency note

This opinion was issued in 1986, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. The duty of confidentiality and its self-defense exception are now addressed by Rule 1.6, including Rule 1.6(b)(5). 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: Must a lawyer wait until he is actually indicted before disclosing confidences to defend himself?

A: The committee concluded no; a lawyer need not wait for a formal accusation such as an indictment, summons, or disciplinary charge, given the cost and reputational harm of defending a formal charge.

Q: How much can the lawyer reveal under the self-defense exception?

A: The committee concluded disclosure must be no more extensive than necessary to establish the lawyer's non-involvement, so the lawyer should avoid revealing conversations beyond what is needed.

Q: Does the lawyer have to tell the former client before disclosing?

A: The committee concluded the lawyer should notify the client unless there are compelling reasons not to, such as a reasonable belief the client would use the warning to continue or conceal wrongdoing, or that notice would risk harm.

Q: Is a bare suspicion of wrongdoing enough to trigger the self-defense exception?

A: The committee concluded no; it requires more than a whisper or suspicion, but found that a prosecutor's report of incriminating statements by the client's employees met the standard of an accusation here.

Background and rules framework

The opinion turned on New York Code Canon 4 and DR 4-101, which bar a lawyer from knowingly revealing a client's confidences and secrets (a duty that continues after the representation ends, EC 4-6), subject to exceptions including the self-defense exception in DR 4-101(C)(4), client consent under DR 4-101(C)(1), and court-ordered disclosure under DR 4-101(C)(2). This corresponds to ABA Model Rule 1.6, including the self-defense exception now codified at Rule 1.6(b)(5).

Citations and references

Rules of Professional Conduct:

• New York Code DR 4-101(A), (B), (C)(1), (C)(2), (C)(4); Canon 4; EC 4-1, EC 4-4, EC 4-6 (applied in the opinion)
• MR 1.6 (confidentiality), including MR 1.6(b)(5) (self-defense exception)

Cases:

• Meyerhofer v. Empire Fire and Marine Insurance Co., 497 F.2d 1190 (2d Cir.), cert. denied, 419 U.S. 998 (1974), lawyer's right of self-defense disclosure
• Application of Friend, 411 F. Supp. 776 (S.D.N.Y. 1975), seeking a judicial ruling on disclosure

Other opinions cited:

• N.Y. City 79-63 (1980): limiting disclosure to what is necessary
• Michigan Op. CI-900 (1983); Maine Op. 55 (1985): notice to the client before disclosure

See also

• NYC Bar Formal Op. 1986-8: Disclosing Confidences to Collect a Fee From a Former Client
• NYC Bar Formal Op. 1987-3: Government Lawyer Confidences Versus Candor

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1986-7/