Can a discharged legal-services lawyer reveal confidential client information to defend against substandard-performance claims in a termination appeal?

Plain-English summary

Attorney A worked for a legal-services agency and was terminated by the Director for alleged substandard performance, including failing to file court papers on time. Attorney A wished to appeal the termination to the agency board, as his contract allowed, but rebutting the performance claims might require disclosing confidential client information to the board. The committee was asked whether he could do so.

The committee concluded Rule 1.6(b)(2) permits the disclosure. That exception 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 appeal arose from allegations that Attorney A performed substandardly in his representation, he may reveal confidential information as necessary to respond, limited per the rule's comments to what is necessary to answer the allegations. The committee expressly assumed, without deciding, that revealing information to the agency board is a "disclosure" for Rule 1.6 purposes.

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 Treat this page as historical context, not current guidance.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 fired lawyer use client confidences to fight his termination?

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

Q: How much could he disclose?

A: Only what he believes necessary to respond to the allegations, tracking the rule's comments.

Q: Did the committee decide whether telling the board counts as a Rule 1.6 disclosure?

A: No. The committee expressly took no position on that and assumed for the opinion that it does.

Background and rules framework

The opinion applied Rule 1.6 (confidentiality of information), specifically the Rule 1.6(b)(2) self-defense exception for responding 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. 94-23: Self-Defense Disclosure Before an Agency
• 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-94-24/

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 94-24

Attorney A was employed by a legal services agency under the supervision of Director. Director terminated Attorney A based upon various acts of alleged substandard performance, including by way of example, failure to file court papers in a timely manner. Attorney A wishes to appeal Director's decision to the agency board, as allowed by contract, but in order to respond to Director's claims that Attorney A performed in a substandard manner, Attorney A may need to disclose confidential client information to the board.

Question:
Can Attorney A, in the course of an appeal from termination before agency board, disclose confidential client information?

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 Attorney A has engaged in substandard performance 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.

(Note: The committee expresses no opinion regarding whether information revealed to the agency board is disclosure for purposes of Rule 1.6 but assumes for the opinion that it is.)