Can a lawyer reveal a former client's confidences to defend against the client's accusations or to collect an unpaid fee?

Plain-English summary

A lawyer tried a dissolution-of-marriage case to judgment, then filed a post-trial motion for unpaid attorney's fees against his client. The client discharged the lawyer and filed a pro se motion for a new trial, alleging numerous breaches of duty by the former lawyer. The inquiry asked whether the lawyer could disclose the client's confidences when the accusations were made to obtain a new trial in an action to which the lawyer was not a party.

The opinion concluded that the Rules require a lawyer to reveal confidences only to prevent an act resulting in death or serious bodily harm (Rule 1.6(b)), and that under Rule 1.6(a) a lawyer otherwise may not reveal confidences without consent unless permitted by Rule 1.6(b) or (c). It concluded that Rule 1.6(c)(3) permits (but does not require) a lawyer to use or reveal confidences or secrets necessary to establish or collect the lawyer's fee or to defend the lawyer (or the lawyer's employees or associates) against an accusation of wrongful conduct.

The opinion concluded that the intent of Rule 1.6(c)(3) is to allow disclosure in the forum where the accusations are made, regardless of whether the lawyer is a party to that litigation, so the lawyer here could reveal confidences reasonably necessary to defend against the client's accusations and could also reveal confidences necessary to determine the fee issue in his motion. It further concluded that if the lawyer were called as a witness and ordered by the court to answer, Rule 1.6(c)(1) gives the lawyer discretion to reveal confidences when required by law or court order.

Currency note

This opinion was issued in 1994, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in May 2010 as generally consistent with the 2010 Rules (referring to Rule 1.6(a) and (b)(5)), while noting the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a lawyer reveal a client's confidences to answer the client's accusations of misconduct?

A: The opinion concluded the lawyer may, in his discretion, reveal confidences reasonably necessary to defend against accusations of wrongful conduct under Rule 1.6(c)(3).

Q: Does it matter that the lawyer is not a party to the case where the accusations are made?

A: No. The opinion concluded the self-defense exception allows disclosure in the forum where the accusations are made, whether or not the lawyer is a party.

Q: Can the lawyer use confidences to collect an unpaid fee?

A: The opinion concluded Rule 1.6(c)(3) also permits revealing confidences necessary to establish or collect the lawyer's fee, such as in the lawyer's motion for fees.

Background and rules framework

The opinion interpreted Rule 1.6 (confidentiality of information): subsection (a) (the general bar on revealing confidences), and subsection (c) (permissive exceptions, including (c)(3) for self-defense and fee collection, and (c)(1) for disclosure required by law or court order) (Model Rule 1.6).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality of information; self-defense exception) / Illinois Rule 1.6(a), (c)(3)

See also

• ISBA Ethics Op. 92-13: Testimony Related to Collection of Attorney Fees
• ISBA Ethics Op. 17-01: Disclosure of Client Confidential Information to Prevent Harm
• ISBA Ethics Op. 01-04: Fee Dispute

Source

• Landing page: https://www.isba.org/ethics/opinions/9410