Self-Defense and the Privilege

A lawyer who may reveal client information to defend herself has not thereby gained the right to testify about it. Two questions arise whenever a lawyer's own dispute puts client communications in play, and they belong to different bodies of law. The first is whether the ethics rules permit the disclosure. Rule 1.6(b)(5) does: it lets a lawyer reveal information relating to the representation to establish a claim or defense in a controversy with the client, to defend against a criminal charge or civil claim based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the representation.¹ The second is whether the lawyer may testify over the client's objection, or whether the client can invoke the attorney-client privilege to keep the lawyer's account out of evidence. The Rules of Professional Conduct answer the first question, and discipline enforces them. The law of evidence answers the second, and a judge enforces it by ruling on an objection. The characteristic error is to treat testimony as proper because Rule 1.6 permits disclosure, and that reasoning fails whenever the privilege still applies.

Why an ethics exception does not become a privilege exception

The two doctrines differ in scope and in kind. Rule 1.6 protects nearly all information the lawyer holds that relates to the representation, which includes the lawyer's communications with the client but extends well beyond them. The privilege attaches to a narrower subset: the lawyer-client communications that are immune from legal process and may not be introduced as evidence against the client.² Because of that difference, an exception in the ethics rules does not carry over to the privilege on its own. Unless an ethics exception aligns with a recognized exception to the privilege, the lawyer's disclosure is limited to non-testimonial revelation for an extra-evidentiary purpose.³

Consider a client who reveals an intent to cause harm to another person. Rule 1.6 or a state ethics rule may give the lawyer discretion, or even a duty, to tell law enforcement or the person at risk. The privilege nonetheless persists, so long as the client did not exploit the representation to advance the crime, and it precludes calling the lawyer to testify against the client about that communication.⁴ The two doctrines ask different things. An ethics exception concerns what the lawyer may or must reveal, while the privilege concerns what can be compelled as evidence. If a lawyer's own decision to speak could dissolve the privilege, the lawyer could put any communication before a court merely by choosing to disclose it.

Where the two doctrines meet: disputes between lawyer and client

The doctrines converge in one setting, a dispute between lawyer and client. At common law, a lawyer who becomes involved in a legal controversy with a client or former client may reveal any confidences necessary to defend herself or to vindicate her rights on the disputed issues.⁵ This self-protection exception is old. Justice Selden articulated it in 1851, writing that a lawyer with an interest in the facts communicated to him, whose disclosure becomes necessary to protect his own personal rights, must be exempted from the obligation of secrecy. The Supreme Court recognized the exception in 1888 in Hunt v. Blackburn, and courts and commentators now accept it as black-letter law.⁶ The ethics rule and the privilege exception run in parallel here.⁷ The first clause of Rule 1.6(b)(5) permits disclosure in a controversy between lawyer and client, and the privilege exception reaches the same dispute, so a lawyer in that setting can generally both reveal the information and testify to it.

The leading illustration is Squire Sanders & Dempsey, L.L.P. v. Givaudan Flavors Corp. The Ohio Supreme Court held that the common-law self-protection exception permits an attorney to testify about attorney-client communications when necessary to establish a claim for legal fees or to defend against a charge of malpractice or other wrongdoing in litigation between the attorney and the client.⁸ The reasoning rests on fairness. The privilege exists to aid the administration of justice and yields where justice requires, and the same considerations of justice and fairness that support the privilege prevent a client from using it in litigation against a lawyer to the lawyer's disadvantage.⁹ Put as shorthand, the client cannot use the privilege as both sword and shield. A malpractice claim is a dispute about what the lawyer was told, what the lawyer advised, and what the lawyer did, so every fact that matters lies inside the privileged communications. If the privilege held, the client could describe the representation however the claim required, and the lawyer could not answer. Ohio's Rule 1.6 comments point the same way. Comment [10] recognizes the lawyer's right to respond to a client's allegation in a lawsuit that the lawyer committed a wrong. Comment [11] lets the lawyer prove the services rendered in a fee action, reflecting the principle that the beneficiary of a fiduciary relationship may not exploit it to the detriment of the fiduciary.¹⁰

The court also set aside an earlier Ohio decision, Jackson, as distinguishable because it dealt only with waiver of the privilege, while the case before the court concerned a common-law exception.¹¹ The distinction matters. Waiver is something the client does, whereas courts and commentators describe the self-protection exception as black-letter law defining which communications are subject to the privilege in the first place.¹² A client's failure to waive therefore does not decide the question, and the exception reaches whatever confidences are necessary on the disputed issues.¹³

Beyond the client dispute

Courts have not confined the privilege exception to lawyer-client controversies. Bolstered by the parallel ethics exception, they have extended it to a lawyer's defense against a third party's charge of wrongdoing, such as a lawsuit alleging fraudulent conduct in connection with the representation, and to a lawyer's response to a disciplinary complaint.¹⁴ The overlap with Rule 1.6(b)(5) is therefore wide but not automatic. Where a jurisdiction has recognized no matching privilege exception, the lawyer is limited to non-testimonial disclosure for the stated purpose, so a lawyer facing an unusual proceeding should confirm that the privilege exception applies there before assuming that testimony is available.¹⁵

Exam questions on this topic usually describe a lawyer who has revealed, or wants to reveal, client communications and then ask about testimony. The decisive step is to identify the setting. A lawyer who sues a former client for fees, or who defends the client's malpractice claim, can both disclose under the ethics rule and testify over a privilege objection. A lawyer who made an ethics-only disclosure, such as a consultation with an adviser, has no answer to a privilege objection, because no privilege exception follows from that permission.