This blog concentrates on Minnesota ethics developments. However, many Minnesota lawyers are licensed in neighboring states. Other Minnesota lawyers appear in these states for occasional transactions or litigation matters. When they do so, the neighboring state’s ethics rules normally apply. In this month’s blog, I discuss an Iowa opinion because it appears to take an unprecedented position, and creates a trap for the unwary.
The Iowa State Bar Association Ethics and Practice Guidelines Committee has issued
Opinion 15-03. Special scrutiny is warranted regarding the portion of the opinion relating to a lawyer’s purported communication obligation to a former client who has filed or threatened an ethics or malpractice complaint against the lawyer.
OVERVIEW.
Opinion 15-03 attempts to create affirmative communications obligations for lawyers to former clients who are now adverse. In doing so, the opinion clashes with several important standards. The law has seldom created affirmative obligations to adverse parties or former clients. The opinion attempts to create these obligations without any express foundation in law, and in direct limitation of the disclosure permission granted by Iowa R. Prof’l C. 32: 1.6(b)(5). The opinion requires lawyers to “advise” unrepresented adverse parties, but without attention to Iowa R. Prof’l C. 32: 4.3, which prohibits advising unrepresented adverse parties. In describing a lawyer’s communication obligations, the opinion vacillates between distant poles—requiring “a knowing and express waiver” from the former client and merely giving “written notification” to the former client.
The opinion summary states,
A LAWYER INVOKING THE IMPLIED WAIVER OF SELF-DEFENSE MUST FIRST ENSURE THE CLIENT HAS MADE A KNOWING WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE OR RULE OF CONFIDENTIALITY AND THEN LIMIT THE DISCLOSURE TO ONLY THAT INFORMATION WHICH REASONABLY RESPONDS TO THE ADVERSE ALLEGATION.
This commentary will focus on the portion of Op. 15-03, titled, “The Client as a Pro-Se Litigant.” At 6-7. This portion discusses a lawyer’s confidentiality obligation and disclosure right, when a former client, acting without counsel, files, or threatens, a malpractice or ethics claim against the lawyer. (Although the opinion titles quoted above refer to “client,” the portion of the opinion addressed here deals with situations involving former clients.)
Purported Mandate, Purported Limitation on Rule, Policy Foundation. The primary situation considered here involves a former client who, acting without counsel, has filed an ethics complaint against a lawyer. Although the opinion also applies to malpractice complaints filed pro se and to threatened ethics and malpractice complaints, there are relatively few such complaints.
The opinion would create an “obligation to advise the pro se [former] client” regarding privilege waiver, before a lawyer discloses confidential client information. At 7, emphasis added. The opinion would thereby limit the disclosure permission found in the common law and codified by the Iowa Supreme Court, “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: * * * to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” Iowa R. Prof’l C. 32: 1.6(b)(5). The opinion characterizes this rule as “the implied waiver of self-defense.”
The opinion states that, for policy reasons valued by the Committee, and notwithstanding the express disclosure permission of the rule, a lawyer “must honor the privilege” and may not reveal client information unless and until the lawyer makes certain communications and the client “has made a knowing waiver.” Id. (Emphasis added.) The opinion does not anchor these purported mandates in the law.
Instead, the opinion anchors the purported mandates in a policy favored by the Committee, “A knowing and express waiver of legal professional privilege and/or confidentiality is far superior to one implied.” At 6. Four problems make this policy unsuitable as a foundation for Opinion 15-03.
First, even though knowing waiver may be superior to a constructive waiver, the law of privilege and the law of attorney ethics have nonetheless found waiver by conduct and other implied waivers sufficient as valid and effective waivers.1 Second, and correlatively, an ethics committee opinion is not superior to the law. Third, Opinion 15-03 shifts from its announced foundation (“knowing and express waiver”) to a far smaller base—mere “written notification.” These shifting foundations are caused by the practical difficulties in obtaining “knowing and express waiver.”
The fourth problem is that Opinion 15-03 requires the lawyer to communicate to the former client who merely threatens a complaint. This is, purportedly, an affirmative obligation, not merely an obligation to refrain from disclosing information. What rule or law anchors this purported obligation? Rule 1.6 cannot be the anchor, because the only subjects of Rule 1.6 are prohibiting or permitting disclosures to others. Rule 1.6 also addresses “informed consent,” but only as one basis for permission to disclose. Opinion 15-03 cites Rule 32: 1.4(b) as the basis for successor counsel’s duty to communicate regarding loss of confidentiality protection. However, Rule 1.4 applies only to current counsel and only to the “matter” in the representation.
False Dilemma. The opinion creates a dilemma not found in the law, “Obviously the lawyer has a right to self-defense but it is difficult to exercise if the client has not waived the legal professional privilege.” At 7. A lawyer may sometimes have difficulty determining, exactly, “the extent” of disclosure that “the lawyer reasonably believes necessary.” Rule 32:1.6(b)(5). There is, however, no “dilemma,” because the law deems the client-accuser to have waived confidentiality rights, to the extent necessary for response. Three points may be made.
First, regardless of whether the former client has waived privilege, knowingly or by conduct, Rule 32:1.6(b)(5) expressly permits the lawyer to make disclosures of client information that are reasonably necessary to self-defense—without any pre-condition, such as the former client/now accuser’s “knowing waiver.” The purported “obligation” to refrain from such disclosures until there is knowing waiver or written notification has no foundation in the ethics rules, and Opinion 15-03 does not attempt to lay a foundation in the rules.
Second, the former client who has filed an ethics complaint has, by the law of privilege, thereby already waived privilege to an extent determinable by law. The law of privilege includes not only how privilege is created, but how privilege is either maintained or lost. Privilege maintenance requires conduct consistent with the intent of confidentiality. Loss of privilege results from disclosures outside the attorney/client privilege circle, including disclosure to a lawyer discipline office. The scope of waiver will vary according to factors including the content of the communication, the proximity of the communication to subjects protected by privilege, etc.
Third, review of any treatise on the law of privilege will reveal that the great majority of privilege waivers occur, not by knowing relinquishment of a right, but by conduct inconsistent with intent of confidentiality. Disclosure to a third party is the most common type of waiver. Such waivers are no less effective and common for being constructive. Legislatures have found such implied waivers sufficient for statutory codification, e.g., by statute a worker’s compensation claimant waives medical privilege. Opinion 15-03 impliedly challenges a large body of law involving privilege waiver by conduct.
Drafting Problem—“The Issue Has the Obligation.” In addition to problems of general principle, Opinion 15-03 also has drafting problems, of opacity and inconsistency.
A central statement of the opinion appears to contain a drafting or proofreading error, “The issue has the obligation to advise the pro se client that by adopting their course of action they automatically waive the attorney client privilege.” [sic]2 Perhaps the Committee meant to say “former lawyer” instead of “issue?” If so, the meaning of “by adopting their course of action” is not clear. The phrase suggests that if the former client persists with a complaint, privilege will be lost. However, as explained above, the very filing of the complaint has already waived privilege, at least to some extent.
Inconsistency—Advise and Violate Rule 4.3? Or Merely Notify? When the Committee imposes an “obligation to advise,” the meaning of “advise” is unclear and apparently used in two different senses. If “advise” means “give legal advice,” then this advice would violate the rule against giving legal advice to an unrepresented party with adverse interests. Iowa R. Prof’l C. 32: 4.3. Opinion 15-03 does not cite or discuss Rule 4.3, although the rule’s title (“Dealing With Unrepresented Person”) shows that it bears on the situation at hand. The Committee recognizes other issues in advising the former client, but not the Rule 4.3 issue: “However we recognize that once a complaint is filed, the lawyer cannot advise the prior client because in doing so the lawyer could be accused of attempting to obstruct or tamper with the process for personal advantage.” At 7.
In the above citations, the Committee has opined, in the same paragraph, both that the lawyer “has the obligation to advise,” and that “the lawyer cannot advise.” Which is it? Perhaps the first “advise” is meant as “written notification.” If so, the content of the communication would determine whether it is legal advice, in violation of Rule 4.3, or a mere notice. The required communication must be sufficient to obtain the “knowing and express” waiver, to which the opinion refers numerous times.
To avoid the problem of giving advice, however, Opinion 15-03 at some points attenuates the required communication. Thus, mere notice is sometimes said to suffice, e.g., “In the implied self-defense waiver, [sic] targeted counsel is justified in relying upon the implied self-defense waiver provided there is evidence that the client has been notified of losing attorney-client privilege. That notification can occur in a written notification on the initial complaint, in a court order authorizing the proceedings, or in other written communication to the client.” At 7. Emphases added. At this point in the opinion mere unilateral notification suffices. If mere notice suffices, how has a “knowing waiver” been ensured? Does the former client’s silence or conduct substitute for the “express” waiver the opinion purports to require?
At other points, however, Opinion 15-03 requires more than mere notice, e.g., “However, absent evidence of a knowing waiver targeted counsel must honor the privilege until such time as the issue can be resolved by express waiver from the client or court adjudication of the issue after notice to the client.” At 7. At this point, only “knowing waiver,” or “express waiver,” or “adjudication . . . after notice” will suffice.
Does Obtaining “Informed Consent” or “Knowing Waiver” Entail Giving Legal Advice? For a client who does not understand that filing a complaint against a lawyer has already waived privileged and confidentiality to some extent, and that pursuing the complaint further may cause further waiver, a good deal of communication is required to ensure a “knowing waiver.”
Opinion 15-03 uses “informed consent” as equivalent to “knowing waiver.” Informed consent requires that, “The lawyer must make reasonable efforts to ensure that the client or other person possesses information reasonably adequate to make an informed decision. Ordinarily, this will require communication that includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary to inform the client or other person of the material advantages and disadvantages of the proposed course of conduct, and a discussion of the client’s or other person’s options and alternatives.” Iowa R. Prof’l C. 32: 1.0 cmt. 6. The communication contemplated by this comment is not mere “notification.”
The laws germane to these issues—privilege, work product, confidentiality, waiver, scope of waiver—are exceptionally complicated, fact-dependent, and often uncertain. To ensure “knowing waiver,” or “informed consent,” a lawyer normally would have to advise. But legal advice to an unrepresented, adverse party is forbidden by Rule 4.3, and the Committee does not purport to overrule Rule 4.3.
Summary and Fundamental Problems. Although Opinion 15-03 suffers from inconsistency and lack of clarity, its fundamental problems are much more serious.
First, Opinion 15-03 purports to amend a Rule of Professional Conduct by imposing its belief that a knowing waiver is “far superior” to a waiver that is implied or that is created by law. If the Committee’s views on superiority are persuasive, they should be offered as a basis for a proposed amendment to the Rules of Professional Conduct. Alternatively, amendment to procedural rules could be sought, requiring the discipline authority to communicate with complainants about loss of confidentiality protections.
Second, by using the language of mandate (“obligation,” “must,” and “may not”) Opinion 15-03 indicates that a lawyer who follows Rule 32:16(b)(5)—by disclosing client information for self-defense without notification or waiver—will violate the law. However, on what basis would a discipline agency purport to discipline the lawyer? The lawyer has not violated any Rule of Professional Conduct. On what basis would the former client sue the lawyer for breach of duty? The fiduciary duty of confidentiality has long been recognized, at common law, as subject to the fiduciary’s right of self-defense.
Third, Opinion 15-03 does not consider how the communications requirements it imposes relate to the prohibition against legal advice to pro se adverse parties in Rule 4.3. If the communication is a bare-bones notice, it will not “ensure knowing waiver,” especially if the former client is not experienced in the law or is not educated. If, on the other hand, the communication is sufficient to “ensure knowing waiver,” it will involve advice to an adverse, unrepresented party, in violation of Rule 4.3. If the Committee believes there are communications that suffice to “ensure knowing waiver,” without including legal advice, the Committee should provide a sample.
Fourth, the law has been very reluctant to impose affirmative duties on lawyers toward their former clients. The law has been even more reluctant to impose affirmative duties on lawyers toward parties who are adverse in litigation or in ethics proceedings. There are good, compelling and time-honored reasons for such reluctance. Opinion 15-03, in contrast, cites no precedent in the rules, or authority in any jurisdiction, to justify its requirement that lawyers “ensure knowing waiver” before disclosing client information in response to ethics complaints, malpractice claims, and the like.
1 Statements in this commentary on the law of privilege and confidentiality are based on principles recognized in the Restatement (Third) of the Law Governing Lawyers (2000).
2 This cryptic sentence is followed by another cryptic sentence, “There are only two options: The entity with which the proceedings are filed or the lawyer subject to the complaint.”