My former client is appealing his criminal convictions by claiming I represented him ineffectively, and I expect to be subpoenaed. May I testify using confidential information from the representation to defend myself?

Plain-English summary

The inquiring attorney represented a client in a criminal matter that ended in convictions on numerous charges. The former client is appealing, arguing among other things that the attorney's representation was ineffective and incompetent, and the attorney expects to be subpoenaed to testify about that claim. The attorney asked whether the Rules of Professional Conduct permit testifying using information relating to the former representation.

The panel concluded that the attorney may testify, relying on Rules 1.6 and 1.9(c). It began from the premise that all information relating to the representation is confidential under Rule 1.6, an obligation the panel has historically interpreted broadly (citing Ops. 97-23, 95-61, and 94-42, the last treating even a client's identity as protected). That duty continues after the representation ends, as embodied in Rule 1.9(c), which bars a lawyer from using former-client information to the client's disadvantage or revealing it, except as the Rules would permit with respect to a current client.

The panel found the Rule 1.6(b)(2) exception applies. That provision permits a lawyer to reveal otherwise-confidential information to the extent reasonably necessary to establish a defense in a controversy between the lawyer and the client, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. Citing Comment [5] and Opinion 1993-02, the panel held that defending against allegations of ineffectiveness and incompetence falls squarely within this exception.

The panel closed by reminding the attorney of the exception's limits: disclosure should be no greater than reasonably necessary to vindicate innocence, should be made in a manner that limits access to the tribunal and other persons with a need to know, and appropriate protective orders or other arrangements should be sought to the fullest extent practicable (quoting Rule 1.6, Comment [5]).

In practice

Under this opinion, a Rhode Island lawyer facing a former client's ineffective-assistance or incompetence claim may testify using information relating to the former representation, because the Rule 1.6(b)(2) self-defense exception (applied to former clients through Rule 1.9(c)) permits disclosure to respond to allegations concerning the lawyer's representation. The panel held the disclosure must be no greater than reasonably necessary to vindicate the lawyer, made in a manner that limits access to those with a need to know, and paired with protective orders or other arrangements where practicable.

Common questions

Q: Can I testify against a former client who claims I was ineffective?

A: The panel said yes. Defending against ineffectiveness and incompetence allegations falls within the Rule 1.6(b)(2) self-defense exception, which applies to former clients through Rule 1.9(c).

Q: Isn't information about a former client still confidential?

A: Yes. The panel confirmed that all information relating to the representation stays confidential under Rule 1.6 even after the relationship ends, but Rule 1.6(b)(2) supplies an exception when the lawyer must respond to allegations concerning the representation.

Q: How much can I disclose?

A: The panel said, quoting Comment [5], that disclosure should be no greater than reasonably necessary to vindicate innocence, made in a manner that limits access to the tribunal and persons with a need to know, with protective orders or other arrangements sought to the fullest extent practicable.

Background and rules framework

The opinion applies Rule 1.6 (Model Rule 1.6, confidentiality of information) and Rule 1.9(c) (Model Rule 1.9, duties to former clients). Rule 1.6(a) bars revealing information relating to a representation absent consent or an exception; Rule 1.6(b)(2) permits disclosure to establish a defense in a controversy between the lawyer and client or to respond to allegations concerning the lawyer's representation. Rule 1.9(c) carries the confidentiality duty forward after the representation ends but permits the same disclosures the Rules would allow for a current client. The panel relied on Rule 1.6, Comments [1], [5], and [7].

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• MR 1.9 (duties to former clients)
• RI RPC 1.6, 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• RI EAP Op. 97-23 (confidentiality obligation interpreted broadly)
• RI EAP Op. 95-61 (broad interpretation of the confidentiality obligation)
• RI EAP Op. 94-42 (even a client's identity is confidential information protected by Rule 1.6)
• RI EAP Op. 1993-02 (self-defense disclosure to respond to allegations about the representation)

See also

• RI EAP Op. 2024-07: Duty to Disclose a Deceased Former Client's Confession
• RI EAP Op. 2002-05: Lawyer as Witness When a Partner Testifies at Trial
• ABA Formal Op. 01-424: Former In-House Lawyer's Wrongful-Discharge Suit

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP-2024-12.pdf

Original opinion text

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

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2024-12
Issued December 17, 2024

FACTS

The inquiring attorney represented a client in a criminal matter which resulted in convictions on numerous charges. The former client is appealing his or her convictions claiming, among other arguments, that the inquiring attorney's representation of him or her was ineffective and incompetent. The inquiring attorney indicates that he or she expects to be subpoenaed to testify regarding this claim.

ISSUE PRESENTED

The inquiring attorney asks whether the Rules of Professional Conduct permit him or her to testify using information relating to his or her representation of the former client?

OPINION

It is the Panel's opinion that the inquiring attorney may testify using information relating to his or her representation of the former client pursuant to Rules 1.6 and 1.9(c) of the Rules of Professional Conduct.

REASONING

Rule 1.6 addresses the confidentiality of information relating to the representation of a client:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

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

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm;

(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 representation of the client;

(3) to secure legal advice about the lawyer's compliance with these Rules; or

(4) to comply with other law or a court order.

"A fundamental principle in the client-lawyer relationship is that the lawyer maintain confidentiality of information relating to the representation." Rule 1.6, Comment [1]. This principle "applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source." Id. The Panel has historically "interpreted this obligation broadly." Rhode Island Supreme Court Ethics Advisory Panel Op. 97-23; see also Rhode Island Supreme Court Ethics Advisory Panel Op. 95-61; Rhode Island Supreme Court Ethics Advisory Panel Op. 94-42 (determining that even the identity of a client is confidential information protected by Rule 1.6).

"The duty of confidentiality continues after the client-lawyer relationship has terminated." Rule 1.6, Comment [7]. This principle is embodied in Rule 1.9(c):

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Here, the inquiring attorney represented the former client in a criminal matter which resulted in convictions on numerous charges. Any and all information relating to this representation is deemed confidential under Rule 1.6. See Rule 1.6, Comment [1]. Such confidentiality applies even though the representation has been terminated. See Rule 1.6, Comment [7]. Pursuant to Rule 1.9(c), the inquiring attorney can neither "use information relating to the [former] representation to the disadvantage of the former client" nor "reveal information relating to the [former] representation," except as the Rules of Professional Conduct permit.

The Panel finds that under the facts as described by the inquiring attorney, the exception in Rule 1.6(b)(2) applies here. Rule 1.6(b)(2) permits an attorney, in relevant part, to reveal otherwise confidential information relating to the representation of a client to the extent the attorney "reasonably believes necessary" to defend himself or herself "in a controversy between the lawyer and the client" or in response to "allegations in any proceeding concerning the lawyer's representation of the client . . . ." See Rule 1.6, Comment [5] (observing that "[w]here a legal claim or disciplinary charge alleges . . . misconduct of the lawyer involving representation of the client, the lawyer may respond to the extent the lawyer reasonably believes necessary to establish a defense. The same is true with respect to a claim involving the conduct or representation of a former client"). Defending oneself from allegations of ineffectiveness and incompetence, claims the inquiring attorney currently faces, falls squarely within the scope of this exception. See id.; see also Rhode Island Supreme Court Ethics Advisory Panel Op. 1993-02. Notwithstanding, the Panel reminds the inquiring attorney that in using information relating to the representation in his or her defense, such "disclosure should be no greater than the lawyer reasonably believes is necessary to vindicate innocence, the disclosure should be made in a manner which limits access to the information to the tribunal or other persons having a need to know it, and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable." Rule 1.6, Comment [5].