Can a law firm suing a former client for unpaid fees reveal what the client told it in confidence?

Plain-English summary

A law firm had represented an individual and his companies for several years in criminal and civil matters. After the client terminated the relationship over a fee demand, the firm sued to recover its fees and asked how much of the attorney-client privilege would remain in effect at depositions and trial, because it believed presenting its case would require disclosing information the client had confided, including information tied to criminal matters under investigation. The committee treated the applicability and waiver of the attorney-client privilege as legal questions beyond its jurisdiction, and limited its response to the firm's ethical obligations under the New York Code.

The committee explained that Canon 4 requires a lawyer to preserve a client's confidences and secrets, a duty that continues after the representation ends (EC 4-6) and applies regardless of the source of the information or whether the information concerns the client's alleged past crimes. It identified the fee-and-self-defense exception in DR 4-101(C)(4), which permits revealing confidences necessary to establish or collect a fee or to defend against an accusation of wrongful conduct. To the extent necessary to establish the claimed fees or defend against a charge of wrongful conduct, but only to that extent, the firm could disclose confidences or secrets without violating its obligations.

The committee stressed that stating the exception did not end the matter. Because the duty to preserve confidences is among the most solemn governing lawyers, the firm could not reveal confidences unless doing so was strictly and clearly necessary; for example, it might not be necessary to disclose anything the client revealed in confidence (as distinct from the subject matter of the investigation, the government's position, and the nature and extent of the firm's services) to establish the fee for the criminal matters. The committee also advised that the firm should seriously consider making its submissions to the court in camera, with a request that the relevant information and proceedings be kept under seal, to avoid excessive and unnecessary disclosure.

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 fee-collection and self-defense exceptions 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: Can a lawyer reveal a former client's confidences when suing the client for fees?

A: The committee concluded yes, under the DR 4-101(C)(4) exception, but only to the extent necessary to establish or collect the fee or to defend against a charge of wrongful conduct.

Q: Does that let the firm disclose everything the client told it?

A: The committee concluded no; disclosure must be strictly and clearly necessary, and it may not be necessary to reveal confided information at all when the subject matter and the firm's services can establish the fee.

Q: How can the firm limit the harm of disclosure during litigation?

A: The committee advised the firm to seriously consider submitting the material to the court in camera and requesting that the information and proceedings be kept under seal.

Q: Is the privilege the same as the ethical duty of confidentiality here?

A: The committee treated the applicability and waiver of the attorney-client privilege as legal questions beyond its jurisdiction, and addressed only the firm's ethical obligations, which apply whether or not the information is privileged.

Background and rules framework

The opinion applied New York Code Canon 4 and DR 4-101, which protect a client's confidences and secrets (DR 4-101(A) defines those terms) and continue after the representation ends, subject to the exception in DR 4-101(C)(4) for revealing confidences necessary to establish or collect a fee or to defend against an accusation of wrongful conduct. This corresponds to ABA Model Rule 1.6, including the fee-collection and 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), DR 4-101(C)(4); Canon 4; EC 4-1, EC 4-4, EC 4-5, EC 4-6 (applied in the opinion)
• MR 1.6 (confidentiality), including MR 1.6(b)(5) (fee-collection and self-defense exception)

Cases:

• Nakasian v. Incontrade, Inc., 409 F. Supp. 1220 (S.D.N.Y. 1976), disclosure to establish or collect a fee

Other opinions cited:

• N.Y. City 1986-7: limiting self-defense disclosure to what is necessary
• N.Y. City 79-63 (1980): disclosure only to the extent necessary
• N.Y. City 82-67 (1983); N.Y. State 479 (1978): confidentiality of a client's alleged past crimes

See also

• NYC Bar Formal Op. 1986-7: Disclosure of Client Confidences in a Lawyer's Self-Defense
• NYC Bar Formal Op. 2000-2: Charging Interest on Unpaid Legal Fees

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-1986-8/