Can a lawyer reveal confidential client communications to defend himself in a Social Security Administration investigation of his own conduct?

Plain-English summary

Attorney A was under investigation by the Social Security Administration for possible misconduct in connection with his representation of a disability claimant, with his right to keep representing claimants before the agency at stake. No grievance proceeding was pending elsewhere. The committee was asked whether he could disclose or discuss confidential client communications to defend himself before the agency.

The committee concluded that Rule 1.6(b)(2) permits the disclosure. That rule lets a lawyer reveal confidential information to the extent reasonably believed necessary to establish a claim or defense in a controversy between lawyer and client, or to respond to allegations in any proceeding concerning the lawyer's representation. Because the SSA proceeding arose from allegations that the attorney engaged in misconduct in his representation, he may reveal confidential information as necessary to respond. The committee noted the rule's comments caution that the attorney should reveal only the information necessary, in his opinion, to respond to the allegations.

Currency note

This opinion was issued in 1994, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Could the lawyer reveal client confidences to defend himself before the SSA?

A: The committee concluded yes, under Rule 1.6(b)(2)'s self-defense exception, because the proceeding arose from allegations about his representation of the client.

Q: Was the disclosure unlimited?

A: No. The committee, tracking the rule's comments, said he should reveal only the information he believes necessary to respond to the allegations.

Background and rules framework

The opinion applied Rule 1.6 (confidentiality of information), specifically the Rule 1.6(b)(2) self-defense exception permitting disclosure to respond to allegations in a proceeding concerning the lawyer's representation. The South Carolina rule corresponds to like-numbered Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information, including the Rule 1.6(b)(2) self-defense exception.

See also

• SC Bar Ethics Op. 94-24: Self-Defense Disclosure in a Termination Appeal
• SC Bar Ethics Op. 94-11: Collecting Unpaid Legal Fees
• SC Bar Ethics Op. 94-30: Disclosing a Client's Whereabouts

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-23/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 94-23

Attorney A is under investigation by Social Security Administration (SSA) for possible misconduct in connection with his client, a Social Security disability claimant. At stake is the attorney's right to continue to represent claimants before the Agency. There is no grievance proceeding pending anywhere else against Attorney A.

Question:
Can Attorney A disclose or discuss confidential communications, which occurred with his client, in defending himself before the Agency?

Summary:
Pursuant to Rule 1.6(b)(2) of the South Carolina Rules of Professional Conduct, Attorney A would be allowed to disclose confidential information.

Opinion:
South Carolina Rules of Professional Conduct provide in Rule 1.6(b)(2) that a lawyer may reveal confidential information to the extent a lawyer reasonably believes necessary in order "To establish a claim or defense on behalf of the lawyer 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". Since the facts indicate that this is a proceeding in which arises from allegations that the Attorney has engaged in misconduct in his representation of the client, the lawyer would be allowed to reveal such confidential information as may be necessary to respond to or defend against the allegations. The Comments to the above quoted Rule caution that the attorney should only reveal that information that is necessary, in his opinion, to respond to the allegations.