Aug. 17, 2016 – Does a lawyer’s disclosure of information protected by SCR 20:1.6 (Confidentiality) pursuant to one of the permissive disclosure exceptions found in SCR 20:1.6(c) waive lawyer-client privilege with respect to that information?
Lawyer represents client who states that a third party has the intention to commit a crime that is likely to substantially harm another. Lawyer reasonably believes that he has the permissive ability to make a disclosure pursuant to SCR 20:1.6(c)(1) and does so to prevent the anticipated harm. Client is later charged with a crime based upon the disclosure. At trial, the prosecutor subpoenas lawyer and asks for testimony about the conversation with client. Client’s lawyer objects that the conversation is privileged and prosecutor argues that privilege was waived by lawyer’s disclosure.
Are the statements that lawyer disclosed to the authorities pursuant to SCR 20:1.6(c)(1) still protected by the lawyer-client privilege?
This situation is based on a case from Maryland, Newman v. Maryland, 863 A.2d 321 (Md. 2004), which relied on an earlier case from Massachusetts to answer the question. These cases are important because the answer cannot be readily discerned by reviewing the disciplinary and evidentiary rules.
Before discussing that case, it is important to understand the difference between the lawyer-client privilege and the ethical duty of confidentiality. Lawyer-client privilege is a rule of evidence, not ethics, and thus only applies in proceedings in which the rules of evidence govern and only determines whether certain types of evidence may be admitted or compelled in such proceedings. It does not serve as a basis for discipline and does not serve as a basis for determining what information about a client that a lawyer may voluntarily reveal. SCR 20:1.6, which governs a lawyer’s duty of confidentiality and applies in all other situations, does serve as a basis for discipline and determines what information about clients’ cases lawyers may voluntarily reveal.
Put simply, when considering whether a lawyer may voluntarily reveal information about a current or former client, SCR 20:1.6 governs.
Put simply, when considering whether a lawyer may voluntarily reveal information about a current or former client, SCR 20:1.6 governs. When facing compulsion of law in a proceeding in which the rules of evidence apply, attorney-client privilege governs.
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In the Newman case, a lawyer had represented a client (the wife) in a divorce where custody of two children was at issue. The client repeatedly and clearly stated an intention to harm the children and blame the husband so that the husband would not get custody of the children. The lawyer eventually reported the statements to the trial court. The client, who subsequently shot and injured her husband, was criminally charged. The prosecutor subpoenaed the lawyer and the trial court held that the lawyer’s disclosure pursuant to Maryland’s Rule 1.6 had “obviated” the lawyer-client privilege. In reversing, the Maryland Court of Appeals stated:
“In a case similar to the instant case, the Supreme Court of Massachusetts addressed the relationship between disclosure under a predecessor to Rule 1.6 and application of the attorney-client privilege in Purcell v. District Attorney for the Suffolk District, 424 Mass. 109, 676 N.E.2d 436 (1997). In that case, a client of Jeffrey Purcell, an attorney employed by Greater Boston Legal Services, threatened to burn down an apartment building where recently the client had been employed. Id. at 437. Purcell determined that he “should advise appropriate authorities that [his client] might engage in conduct harmful to others,” and informed the Boston police. Id. At the client's trial, the prosecution subpoenaed Purcell to testify. Id. at 438. Purcell then filed an action requesting that the Supreme Court determine whether attorney-client privilege prohibited his testifying. Id.
“In determining that a disclosure under DR 4-101(C)(3),5 the disciplinary rule in **333 effect prior to the adoption of Rule 1.6, did not make Purcell's testimony admissible, the court held that to permit such disclosures to then be used against the client at trial would cause lawyers to be “reluctant to come forward if they know that the information they disclose may lead to adverse consequences to their clients.” Id. at 440. Moreover, the court noted that the use of such disclosures could chill the free discourse between the lawyer and the client, thereby limiting the lawyer's ability to thwart threats in the future. Id. Thus, the court held that disclosure to prevent future harm to others is not sufficient to overcome attorney-client privilege. Id. at 440-41.
“We agree with the Massachusetts Supreme Court that such disclosure is not sufficient to obviate the attorney-client privilege and admit the statements as evidence against the attorney's client, not only because of the chilling effect of the obverse, but also because it pits the attorney, as advocate and adviser, against the client, when the client is charged with a crime. To permit a Rule 1.6 disclosure to destroy the attorney-client privilege and empower the attorney to essentially waive his client's privilege without the client's consent is repugnant to the entire purpose of the attorney-client privilege in promoting candor between attorney and client. Moreover, it would violate our duty to “maintain the integrity of the legal profession.” Attorney Grievance Comm'n v. Gansler, 377 Md. 656, 701, 835 A.2d 548, 574 (2003). Therefore, we hold that Friedman's disclosure pursuant to Rule 1.6 of the Maryland Rules of Professional Conduct did not defeat Newman's assertion of the attorney-client privilege.”
These two cases thus provide further guidance to a lawyer considering whether to make permissive disclosures of protected information pursuant to SCR 20:1.6(c). If such a disclosure involves disclosure of privileged information, the disclosure itself will not affect the privileged status of the information.
In Case You Missed It: Read Past Ethical Dilemmas
Ethical Dilemmas appears monthly in InsideTrack. Check out these topics from recent issues:
Must I Reveal Departed Lawyer’s New Location When Clients Ask? June 15, 2016
It happens quite often: A lawyer leaves a firm to join another firm. If a former client calls asking for the lawyer who has left for another firm, what’s the appropriate response?
Referral Fees and Conflicts of Interest, May 18, 2016
When do referral fees generate conflicts of interest? In the case of a longtime client’s daughter, referred to another lawyer for a case in a different practice area, when must you comply with informed consent and when might the referral fee generate a conflict of interest?
For more, search “ethical dilemmas” on WisBar.