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There are some exceptions to privilege rule

By Diane Karpman

Ethics expert Diane Karpman can be reached at karpethics@aol.com.
Karpman

Lawyers are permitted to disclose attorney-client privileged information to defend themselves against claims of professional negligence or wrongful conduct, such as cases involving discipline, civil liability and fee disputes. This principle of basic fairness puts some limits on wild client allegations. Just because you are a lawyer does not mean you have to stand by mute or become a bobblehead.

One privilege exception is that disclosure is permitted to collect a fee. Fiduciary duties do not include enduring unlimited exploitation. Otherwise, a client could wander around tainting lawyers with information, then taking advantage of them.

The self-defense exception is articulated in Evidence Code 958: "There is no [attorney-client] privilege . . . as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship."

Strategically, if you wrote to clients advising them of the horrible consequences of their allegations and they failed to object, arguably that letter could become a constructive or implied consent to the disclosure. My readers know that a consent is always the best protection. Further, that letter would give them the opportunity to request sealing or protective orders, demonstrating that your response is measured and appropriate.

When claims of complicity or collusion are made, self-defense is critically important. Lawyers may need to expose client information to exonerate themselves. Also, consider the crime fraud exception in Evidence Code 956.

Overly enthusiastic or excessive retaliation against a client's claims can result in serious discipline (In the Matter of Dixon (Review Dept. 1999) 4 Cal. State Bar Ct. Rptr. 23), or it could create grounds for breach of fiduciary duty in a civil action. Never use clients' confidences or information against their interest. In an over-the-top case from out of state, a law firm sold out the original members of a class, dropping them like a hot potato to surreptitiously settle around them. Of the $36 million verdict against the firm in the legal malpractice case, $27.7 million was for punitive damages. Interclaim Holdings v. Ness Motley, Civil Action No. 00-CV-7620 (U.S.D.C., N.D. Ill, July 3, 2003).

What if it was not the client that put your conduct "at issue?" Maybe successor counsel or someone else? This is the reason that the cover of State Bar Publication 250 ($15 from the State Bar, a really good buy) is always colored "gray." Usually, the client's right to confidentiality will trump your right to defend against "outsiders."

Remember, disclosure is strictly limited to that which is objectively necessary. You cannot respond to a simple claim of a blown statute with detailed descriptions of client sexual proclivities. Disclosure is limited to necessity, just as it is in tort self- defense. If a mad client comes after you with a paper clip, you can't respond with a howitzer.

Let's face it, having a lawyer is a privilege and clients often forget that fundamental fact.

Ethics expert Diane Karpman can be reached at karpethics@aol.com or 310-887-3900.

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