Can a lawyer reveal confidential client information to defend against a former client's malpractice claim in a fee dispute or to answer a bar complaint about the representation?

Plain-English summary

The opinion addresses two self-defense situations. A former client (Client A) refuses to pay the lawyer's bill and asserts malpractice as a defense to payment; the lawyer believes there was no malpractice. Separately, an opposing party from a matter the lawyer handled for Client B has filed a bar complaint about the lawyer's handling of that matter, which the lawyer believes is unfounded. The opinion asks whether the lawyer may reveal information relating to the representation, and answers yes.

The opinion applies Oregon RPC 1.6(b)(4), which permits a lawyer to reveal information relating to the representation to the extent the lawyer reasonably believes necessary to establish a claim or defense in a controversy between the lawyer and the client, to establish a defense to 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. The opinion notes that the duty of confidentiality is grounded in ORS 9.460(3) and that the phrase "information relating to the representation of a client" in RPC 1.0(f) is the modern equivalent of the former "confidences and secrets."

Because RPC 1.6(b)(4) permits disclosure reasonably necessary to the lawyer's self-defense, for example to justify or explain the lawyer's conduct, the lawyer may reveal information relating to the representation of Client A or Client B to the extent reasonably necessary to rebut their allegations.

In practice

The opinion holds that, under the Oregon rules as they stood at the time of the opinion, the self-defense exception in RPC 1.6(b)(4) reaches both a fee dispute in which the former client raises malpractice and a bar complaint about the representation, and that disclosure is limited to what is reasonably necessary to rebut the allegations. The analysis turns on whether the disclosure is reasonably necessary to the lawyer's self-defense. Verify the current text of Oregon RPC 1.6 before relying on any specific point.

Common questions

Q: A former client says I committed malpractice to avoid paying my bill. Can I use confidential information to defend myself?

A: Yes. The opinion concludes RPC 1.6(b)(4) lets the lawyer reveal information relating to the representation to the extent reasonably necessary to establish a claim or defense in the controversy with the client.

Q: Can I disclose client information to answer a bar complaint?

A: Yes. The opinion concludes the self-defense exception lets the lawyer respond to allegations in a proceeding concerning the representation, including a bar complaint, to the extent reasonably necessary.

Q: Is there a limit on how much I can reveal?

A: Yes. The opinion frames the disclosure as limited to what is reasonably necessary to rebut the allegations.

Background and rules framework

The opinion interprets Oregon RPC 1.6(b)(4) (the self-defense exception to confidentiality), corresponding to Model Rule 1.6, and references the statutory confidentiality duty in ORS 9.460(3) and the definition of "information relating to the representation of a client" in Oregon RPC 1.0(f).

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.6(b)(4) / Model Rule 1.6 (self-defense exception to confidentiality)
• Oregon RPC 1.0(f) (definition of "information relating to the representation of a client")

Statutes:

• ORS 9.460(3) (duty to maintain client confidences and secrets)
• ORS 9.490 (authority for the Rules of Professional Conduct)

See also

• OSB Ethics Op. 2024-204: Use of Client Information for the Lawyer's Benefit
• OSB Ethics Op. 2005-23: Former Lawyer and Client Confidences

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-104.pdf