Can a lawyer reveal client confidences to defend against a former client's malpractice and fraud claims?

Plain-English summary

The inquiring lawyer was the subject of a cross-complaint that alleged, among other things, fraud, false and misleading statements, malpractice, frivolous and fraudulent filings, and unfair and deceptive practices.

The committee was of the opinion that RPC 1.6(b) would permit the lawyer to reveal confidences or secrets to the extent the lawyer reasonably believed necessary to establish a defense in the controversy with the former client. It added that the lawyer should apprise the former clients of the rule and of the area or material the lawyer would go into to rebut their contentions, so that the former clients could consider whether they wished to pursue their claims.

Currency note

This opinion was issued in 1987, before the Washington State Bar Association's adoption of the 2006 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 Treat this page as historical context, not current guidance.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: Can a lawyer use client confidences to defend against a malpractice or fraud cross-claim?

A: Per the committee, yes. RPC 1.6(b) permits revealing confidences or secrets to the extent reasonably necessary to establish a defense in the controversy with the former client.

Q: Does the lawyer have to tell the former clients first?

A: The committee said the lawyer should apprise the former clients of the rule and of the material the lawyer would go into, so they could consider whether to pursue their claims.

Q: How much can the lawyer disclose?

A: Only to the extent the lawyer reasonably believes necessary to establish the defense; the committee tied the permission to the self-defense provision of RPC 1.6(b).

Background and rules framework

The opinion applied RPC 1.6(b) (the confidentiality rule's exception permitting disclosure to establish a claim or defense in a controversy between the lawyer and the client, corresponding to ABA Model Rule 1.6). The committee read a former client's cross-complaint for fraud and malpractice as triggering that self-defense exception, while directing the lawyer to give the former clients notice of the rule and the material at issue.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality of information; self-defense exception); Washington RPC 1.6(b)

See also

• WSBA Ethics Op. 1102: Suing a Client Who Defames You
• WSBA Ethics Op. 1042: Firm Suing a Former Client
• WSBA Ethics Op. 1502: Disclosing a Dead Client's Fraud

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1148

Original opinion text

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

Advisory Opinion: 1112
Year Issued: 1987
RPC(s): RPC 1.6(b)
Subject: Revealing client confidence or secret to establish defense in controversy with former client

The Committee was of the opinion that where you are now the subject of a cross complaint which alleges, among other things, fraud, false and misleading statements, malpractice, frivolous and fraudulent filings, and unfair and deceptive practices, Rule 1.6(b) would permit you to reveal confidences or secrets to the extent you believe reasonable necessary to establish a defense on your behalf in the controversy with your former client. The Committee was further of the opinion that you should apprise your former clients of the Rule and of the area or material which you would go into in order to rebut their contentions so that they could consider whether they wish to pursue their claims.