After a client sues for malpractice and waives privilege, can the lawyer voluntarily disclose the client's confidences to a third party to build a defense?

Plain-English summary

The inquiring lawyer represented another lawyer in a malpractice action and asked whether previously protected client confidences could be disclosed to a third party after the attorney had been sued by the client for malpractice and the client had waived the attorney-client privilege, where disclosure of the third party's requested information would establish a defense.

The committee concluded that voluntary disclosure of the information under the existing circumstances would be a violation of RPC 1.6(a) by the client, and that RPC 8.4(a) applies to prevent the inquiring lawyer from disclosing it. In the event of a formal discovery request under court rules or by subpoena, the committee referred the lawyer to the comment to ABA Model Rule 1.6 (similar to RPC 1.6): where practicable and not prejudicial to establishing the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately; and any disclosure allowed under the rule should be no greater than the lawyer reasonably believes necessary to vindicate innocence, made in a manner that limits access to those who need to know, with the lawyer seeking protective orders to the fullest extent practicable.

Currency note

This opinion was issued in 1997, 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 Treat this page as historical context, not current guidance.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. Washington's cited rules correspond to ABA Model Rules 1.6 (confidentiality) and 8.4 (misconduct).

Common questions

Q: Can the lawyer voluntarily hand a client's confidences to a third party to build a malpractice defense?

A: No. The committee concluded voluntary disclosure under these circumstances would violate RPC 1.6(a), and RPC 8.4(a) prevents the inquiring lawyer from disclosing it.

Q: Does the client's privilege waiver change that?

A: The committee still found voluntary disclosure improper under these circumstances; it pointed to formal discovery or subpoena, not voluntary disclosure, as the route.

Q: If a subpoena or discovery request comes, what should the lawyer do?

A: The committee, citing the comment to Model Rule 1.6, said the lawyer should where practicable advise the client and ask the client to respond, disclose no more than reasonably necessary to vindicate innocence, limit who sees it, and seek protective orders to the fullest extent practicable.

Background and rules framework

The opinion applied RPC 1.6(a) (confidentiality, corresponding to ABA Model Rule 1.6) and RPC 8.4(a) (corresponding to ABA Model Rule 8.4, barring a lawyer from violating the rules through another) to a lawyer's request to disclose a client's confidences in aid of a malpractice defense. The committee distinguished voluntary disclosure, which it found improper, from compelled disclosure through discovery or subpoena, for which it adopted the self-defense safeguards in the comment to Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.6 (confidentiality); Washington RPC 1.6(a)
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4(a)

See also

• WA Ethics Op. 1714: Reporting Tax Fraud in a Divorce
• WA Ethics Op. 1418: Reporting a Prior Lawyer's Lie

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=822

Original opinion text

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

Advisory Opinion: 1754
Year Issued: 1997
RPC(s): RPC 1.6; 8.4(a)
Subject: Client confidence or secret; disclosure of confidences to third party after lawyer sued for malpractice

[The inquiring lawyer represented another lawyer in a malpractice action.] You ask whether previously protected client confidences can be disclosed to a third party after the attorney has been sued by the client for malpractice and the client has waived the attorney-client privilege. You believe that disclosure of this information requested by the third party would establish a defense to the malpractice action.

In reference to the disclosure of client confidences to a third party, it is the Committee's opinion that voluntary disclosure of the information under the existing circumstances would be a violation of RPC 1.6(a) by your client and that RPC 8.4(a) applies to prevent you from disclosing the information. In the event that a formal discovery request is made under court rules or by subpoena, the Committee refers you to the comment to ABA Model Rule 1.6 (which is similar to RPC 1.6). The comment states that where practicable and not prejudicial to the lawyer's ability to establish the defense, the lawyer should advise the client of the third party's assertion and request that the client respond appropriately. The comment also provides that the disclosure, if allowed under the rule, should be no greater than the lawyer reasonable believes is necessary to vindicate innocence, should be made in a manner that limits access to the tribunal or other persons having a need to know it, and the lawyer should seek protective orders to the fullest extent practicable.