Author: Stephen P. Hurley
Co-author: Marcus J. Berghahn

Three months after withdrawing from your representation of client and from an ethically challenged law firm, you learn that you have been named as a defendant in a civil action, which also names your former law partners and your former client. Your malpractice insurance premium will go through the roof (if they will even cover it) when you alert them to a potential multi-million dollar claim against you. Naturally, you seek another resolution of the matter: you are the innocent defendant who will be dropped from the lawsuit if you can tell the plaintiffs the information which will definitively prove that you ought not be a defendant. However, this requires revealing confidential communications – you’ll be disbarred! What are you going to do? Violate the attorney-client privilege and possibly the rules of professional responsibility or spend hundreds of hours and thousands of dollars defending yourself.

In Meyerhoffer v. Empire Marine & Fire Ins. Co., the U.S. Court of Appeals for the Second Circuit held that the American Bar Association’s ethical rules permitted an attorney to defend himself against the accusations of a third party by revealing confidential client communications.1 Meyerhoffer, 497 F.2d at 1195. Significantly, not only did the attorney in Meyerhoffer disclose communications which the client legitimately believed would be protected, but it appears that the plaintiff was able to make use of the attorney’s disclosures to bolster the plaintiffs case against the attorney’s former client.

The attorney-client privilege 2 is often judged as one of the most vital of all the common-law privileges 3 providing protection from forced disclosure and confidential legal discussions between attorney and clients. By protecting the client confidences, the privilege encourages the client to make full disclosure to their attorneys, thus permitting more fully informed representation. 4 The privilege is the solid foundation upon which the relationship between the attorney and the client is built. This foundation, however, may become liquid when an attorney and a (former) client find themselves at odds either through claims of ineffective assistance of counsel, grievances by the client to BAPR, allegations of malpractice, or accusations of criminal conduct by the attorney with regard to the client. In any of the aforementioned situations, the attorney may be required to reveal client confidences. The attorney’s ability to reveal a client’s confidence is actually quite broad when disclosure may be deemed in “self defense.” Invocation of the self defense doctrine, however, bears many pitfalls which may present an incentive (and enormous temptation) to both civil plaintiffs5 and prosecutors to target the defendant’s attorney as a pretext in order to gain “back door” access to client confidences. 6

In light of the growing number of claims against attorneys, the expansion of this doctrine is troubling. Important constitutional implications are raised when prosecutors and defense attorneys attempt to circumvent the privilege in order to obtain the disclosure of confidential communications between client and attorney which may incriminate the client or provide ammunition to the client’s adversary in the client’s current litigation. Courts, however, have remained relatively silent on this threat against clients’ Constitutional rights. Disclosure of attorney-client communications is a delicate problem because of the inherent tension between an attorney’s dual masters: the rules of professional responsibility, and the rules of evidence (i.e.the privilege).

The modern approach to the privilege gives the right of disclosure to the client, who maintains sole discretion to waive it. According to one legal scholar, “[t]o permit the attorney to reveal to others what is … disclosed, would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance.”7 The attorney, however, must take direction from two sources, which may be in conflict with regard to disclosures: the rules of professional responsibility and the rules of evidence. By itself, the attorney-client privilege imposes no ethical obligation on an attorney to withhold client confidences. In contrast to the rules of evidence, the rules of professional responsibility mandate that the attorney not reveal information relating to the representation of a client, except in certain discreet circumstances.8

The self defense exception is one of the exceptions recognized, to a limited degree, by both the rules of evidence and the rules of professional responsibility, and permits in limited circumstance, an attorney to disclose client confidences. 9 Traditionally, courts have allowed an attorney to invoke the self defense exception to the attorney-client privilege when the attorney is either sued for malpractice, charged with misconduct by a client of former client, or brings suit to recover a fee. The self-defense exception, however, may in certain cases be read more broadly permitting, if not requiring, the disclosure of client confidences. 10

Three situations have traditionally been acknowledged as giving rise to the traditional interpretation of the self-defense exception: when an attorney has been sued for malpractice; when the attorney has brought suit in order to recover a fee; and when the attorney is charged with misconduct in the course of litigation between a client (or former client) and another party. Disclosing information in these instances-all situations in which the attorney was in actual opposition the client-has been justified primarily by interpreting the client’s accusations of attorney misconduct as an implied waiver of the privilege. See 8 Wigmore at § 2327. 11 The rules of evidence have codified a generally accepted view that recognizes an exception to the privilege when a client and attorney become opponents in a subsequent controversy. 12

The principal limitations placed upon the use of the self defense exception was first stated in Mitchell v. Bromberger, 2 Nev. (1866), which held that disclosure should be limited to that which is “necessary” to protect the attorney’s interest. Despite this rule, a number of courts have been quite lenient in admitting evidence that is highly prejudicial to the client and only marginally relevant to the attorney’s defense. 13 The related lessons which Meyerhoffer, Friend, and White demonstrate is that the privilege may be used offensively – by a prosecutor – in order seek access to communications which otherwise may be protected.

The landmark case of Meyerhoffer v. Empire Marine & Fire Ins. Co., 497 F.2d 1190 (2d Cir.), cert. denied, 419 U.S. 998 (1974); and In Re Friend, 411 F.Supp. 776 (S.D.N.Y. 1975), dramatically expanded this exception such that the exception may now swallow the rule. Meyerhoffer and Friend permit an attorney to disclose otherwise protected confidences in order to protect the attorney’s own interests, notwithstanding the attorney’s ethical obligations. Meyerhoffer and Friend hold that when the attorney is charged with misconduct or illegal behavior by a third party, such as any civil or criminal action brought against an attorney by a party other than the current or former client or by a current or former client not implicated in the instant action, the attorney may invoke the self defense exception and disclose otherwise privileged and confidential information, even if that disclosure is to the detriment of the (former) client. Indeed, Friend implies that disclosure of confidential communication may be permitted in order for the attorney to defend herself prospectively against criminal charges.

Meyerhoffer is notable because the court reached the question of whether the self defense exception applied without first addressing the logical question of whether the communications divulged by the attorney were in fact privileged. In Meyerhoffer, the disputed disclosure concerned an attorney’s request for an opportunity to meet with plaintiff’s counsel. The defendant’s attorney, who had been named in the action wanted to prove that he had been unaware of a finder’s fee arrangement between the insurance company and their counsel. The attorney alleged that the fee arrangement had been concealed from him by the law firm’s partners. Assuming (1) that the failure to disclose the fee arrangement was unlawful, and that (2) Empire, the insurer, was aware of the fee arrangement, Meyerhoffer would present a classic example of the crime fraud exception; perforce, the communication would not have been privileged and the attorney’s disclosure would have been allowed under the crime fraud exception to the attorney-client privilege.14 The Court, however, did not base its decision upon the application of the crime fraud exception.

Commentators have noted that the court’s failure to engage in the analysis of whether the communications were privileged are attributable to an unspoken finding that the communications were privileged and that therefore the controversy constituted a “true” self defense case. Other commentators note that it is quite possible that the court simply failed to examine the question. 15 In support of the latter position, these commentators note that Meyerhoffer made no mention of the precedent setting nature of its holding. Instead, the court justified its conclusion by referring to the text of the code of professional responsibility’s disciplinary rule DR 4-101 which permits an attorney to reveal “confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.” DR 4-101(C)(4).

Moreover, the Meyerhoffer reading of the disciplinary rule is inconsistent with its legislative history. Had the drafter’s of the code intended to extend the exception to the third party actions it is likely that such a move would spark some discussion. Yet neither the text nor later commentary to the rule contains any mention of an intent to expand the limits of permissible disclosure. See ABA, Annotated Code of Professional Responsibility 180-83 (1979)(discussing Meyerhoffer’s departure from prior ethical principals). Moreover, the court’s interpretation contradicts the long standing policy of the ABA’s committee on professional ethics and grievances. The committee’s formal opinions permit an attorney to reveal confidences in self defense only if charges with misconduct by a client or if necessary to collect a fee.

Not all federal circuits, however, have adopted the Meyerhoffer rationale. The Seventh Circuit, in United States v. White, 879 F.2d 1509 (7th Cir. 1989), cert. denied, 110 S.Ct. 1471 (1990), breathed new life into the client’s right to assert, and waive, the privilege by recognizing that an attorney’s voluntary disclosure of incriminating confidences, in self-defense, might constitute a violation of the client’s Fifth Amendment rights. Although the Court maintained that disclosure might violate a criminal defendant’s rights “under the due process clause of the Fifth Amendment,” White at 1513, it seems more likely that disclosure in such an instance would jeopardize the client’s Fifth Amendment right against self incrimination. The White Court attempted to redress a point which was seemingly lost in Meyerhoffer that the privilege belongs to the client. Thus disclosure of communications, absent any indication of the crime or fraud being perpetrated, rests with the client. However, because the court in White ultimately found that the documents at issue were not privileged, the court declined to decide this constitutional issue. Id. at 1513-14.

Within a year of the Meyerhoffer decision, the U.S. District Court for the Southern District of New York further interpreted the attorney-client privilege to permit an attorney to invoke the self defense exception prior to formal criminal charges even having been filed. In Re Friend, 411 F.Supp. 776 (S.D.N.Y. 1975). In Friend, Attorney Solomon Friend and his client were targets of a federal grand jury investigation. Friend applied for leave to turn over documents concerning his client which, he asserted, would establish his innocence. Significantly, the grand jury had not yet handed up an indictment when this offer was made. Notwithstanding that formal charges had not been filed, the court, citing Meyerhoffer, held that DR 4-101 entitled Friend to disclose the documents. The court noted “although as yet, no formal accusation has been made against Mr. Friend, it will be senseless to require the stigma of an indictment to attach prior to allowing Mr. Friend to invoke the exception…in his own defense.” Id. See SCR 20:1.6(c)(2).

Like the court in Meyerhoffer, the court in Friend made no mention of either the expansive nature of its holding or the need to invoke procedural controls. Instead, it simply held that, prior to filing of formal charges, the attorney could disclose contents of documents that he alleged would establish innocence, even though his clients had asserted that the documents were privileged. On its facts, Friend may require an attorney who has not yet formally been charged to obtain a court order prior to disclosing confidential communications. Obtaining such an order would impose some level of protection on the disclosure, avoiding the situation such as that in Meyerhoffer, where the court sanctioned the attorney’s disclosure even though it had originally been made with any supervision by the court-the judicial equivalent of closing the barn door after the horse has escaped. 16 Utilizing such a procedure would probably protect the attorney from later review by BAPR by enabling him to construct a record upon which the disclosure is premised.

Since Friend, the expanded prospective application of the self defense exception has been recognized by numerous federal courts of appeals. See, e.g., U.S. v. Weger, 709 F.2d. 1151 (7th Cir. 1983) (had documents been privileged attorney would have been entitled to disclose confidences to defend against criminal charges). Moreover, the rule of Friend has been acknowledged by the Seventh Circuit and the District of Columbia Circuit Court of Appeals to justify disclosure prior to the filing of formal charges against the attorney. The language in Weger, however, is dicta and, therefore, may not apply in all cases.

In Meyerhoffer and Friend, the self defense exception has been recognized as sufficient to overcome the attorney’s ethical obligations to maintain client confidences. The exception has also been successfully invoked in order to overcome the attorney-client privilege under the evidentiary rules.

Friend was particularly concerned about the stigma and expense of defending against the lawsuit which undoubtedly was burdensome, but as some commentator’s have noted the court in Friend was simply incorrect in asserting that it is “senseless” to require the assertion of formal charges before an attorney can invoke the exception. Court’s ought mandate a more formal complaint be filed prior to the invocation of the exception as this would not require the attorney to sacrifice their right to defend themselves-it merely requires that they wait for a threat to be substantiated before breaching the privilege. While the stigma and expense of defending against lawsuits certainly may be great, the danger does not merit the risk inherent in the expansion of the self defense doctrine we ought pause and reflect upon the greater harm which will occur if our client’s constitutional rights are thus chilled.