The main thrust of new Lawyers Board Op. 24 is to tell lawyers that when a former client posts a few ordinary criticisms online, Rule 1.6(b)(8) forbids a counterattack that discloses confidential information. This is good advice. But does the opinion go too far, by prohibiting disclosure in response to all “negative” postings, no matter how specific, false and injurious? And does the opinion not go far enough, by not soliciting and providing comment and by not considering all potentially applicable rules?
Scenario 1. May a lawyer disclose confidential information to rebut a former client’s posting of petty criticism?
Former client Connie Carp uses an online forum to post her rating of Les Izmore. Carp states that Les is a “real tool,” that his service and communication were “inadequate,” that he did not achieve her goals, that he was brusque, and that Carp would not hire Les again. These facts are drawn from McKee v. Laurion, 825 N.W.2d 725 (Minn. 2013) and N.Y. State Bar Op. 1032. McKee dismissed a suit for defamation per se, holding that mere hyperbole or vituperation does not defame a professional. Op. 1032 concluded that confidential information could not be disclosed merely because a client had posted a niggling critique. These conclusions seem supportable by the terms of the disclosure permission in Rule 1.6(b)(8) –what is “necessary” to “establish a claim or defense … in an actual or potential controversy. …” Mere bickering falls short of these terms.
Scenario 2. May a lawyer disclose confidential information to rebut a former client’s public accusation of grave misconduct?
Bea Lee’s former client Kid Cann is a well-known blogger. Cann has been accused by authorities of fraudulent, illegal conduct. Cann posts a blog claiming he followed Lee’s advice and Lee assisted him. Publicity is extensive. Lee has a copy of her letter to Cann, advising against the conduct and refusing to assist. Lee demands retraction or she will sue Cann for defamation per se and disclose the letter. Cann threatens suit and an ethics complaint. May Lee post the exculpatory letter on the internet?
Opinion 24 in effect advises that Rule 1.6(b)(8) does not permit Lee to post the exculpatory letter on the internet or in any “public forum.” However, close examination of Rule 1.6(b)(8) and Scenario 2 reveals terms that could be construed as for or against Op. 24.
Rule 1.6(b)(8) allows disclosure “in an actual or potential controversy.” The ordinary meaning of “controversy” is “strong disagreement,” not requiring litigation. The words “actual or potential,” before “controversy,” create further distance from litigation. These words are not in ABA Model Rule 1.6 and are unique to Minnesota. They were added in 2005, on recommendation of an MSBA Task Force. An express cardinal principle of the MSBA petition was that Minnesota would depart from the ABA Model
Rules only where warranted by strong precedent or reason. Has the Lawyers Board asked and answered the important question, “For what strong reason did Minnesota add ‘potential’ to Rule 1.6?” We do not know, because Op. 24 offers no explanatory comment.
Rule 1.6(b)(8) allows disclosure in a “controversy,” “or to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.” Because these disclosure permissions are disjunctive and independent, a “controversy” should not be construed to be the same as a “proceeding.”
Actual litigation is clearly not a prerequisite to Rule 1.6(b)(8) disclosures. A lawyer may disclose confidential information to a third party who, in threatening litigation, claims complicity of lawyer and client. Rule 1.6 cmt. 8. The comment construes the key words “defense” and “established” to be operative in responding to an “assertion” made prior to litigation. A lawyer may disclose as necessary “to defend,” when litigation is “threatened.” Restatement of the Law Governing Lawyers §64.
The question of whether a lawyer needs permission to disclose arises when it is “necessary to establish a claim or defense” in a controversy. Black’s first definition of “claim” is “a statement that something yet to be proved is true,” and lists its third definition as a “complaint . . . specifying relief.” These definitions illustrate that a claim does not require a proceeding. In contrast, the first definition of “defense” is the defendant’s answer in a legal proceeding.
Ethics committees in several states outside Minnesota have opined that a lawyer may not disclose confidential information to respond to posted criticism. However, these states interpret the Model Rule and take no account of Minnesota’s addition of “potential.” Some of these opinions make assumptions not made in Op. 24, e.g. that only petty criticism has been made or that the former client has not disclosed confidential information.
In short, whether the words “establish a claim or defense . . . in an actual or potential controversy” require a proceeding are at the least ambiguous rather than plain.
What is the board’s authority to issue opinions? The “plain meaning” limitation.
The Lawyers Board may “issue opinions on questions of professional conduct.” Rule 4(c), RLPR. However, the Supreme Court has greatly limited the scope of such opinions. The court reversed a discipline where the only alleged violation was of a board opinion. In re Admonition 99-42, 621 N.W.2d 240 (Minn. 2001). The court explained (1) that board opinions provide “no independent substantive basis for disciplining an attorney” and (2) board opinions may interpret the rules, but “without exceeding the scope or plain meaning of the rules. …”
The board’s limited warrant to opine only as to the “scope or plain meaning of the rules” is not broad enough for the board to conclude that a “proceeding” is required for there to be an “actual or potential controversy.”
Do other disclosure permissions of rules 1.6 and 1.9 apply?
Usually, LPRB opinions categorically declare whether certain conduct is permitted, required or forbidden by the rules. In contrast, Op. 24 opines only that Rule 1.6(b)(8) does not permit disclosure.
Other disclosure permissions of Rule 1.6(b) will not apply in most cases. For example, Rule 1.6(b)(2) allows disclosure of information that is not privileged, detrimental, embarrassing or forbidden by the client. A disclosure that publicly shows the client to be a liar is apt to be embarrassing.
Rule 1.9(c)(1) permits a lawyer to use information against a former client “when the information has become generally known.” Rule 1.6(b)(8) permits disclosure of confidential information as “necessary to establish a claim” by the lawyer. May Lee sue Cann for defamation per se, attach a copy of the exculpatory letter to the complaint, file the complaint publicly and disclose the filing?
Two-step: May Lee file the exculpatory letter in court, then post it publicly?
Two authorities and one simple fact appear to permit Lee’s two-step process of filing and disclosing. In Kidwell v. Sybaritic, Inc. 784 N.W.2d 220 (Minn. 2010), the court found no fault in attorney Kidwell’s broad, numerous disclosures in court of very negative client information, to support Kidwell’s wrongful-termination claim against his former client/employer. Lee may disclose any information in legal proceedings that she reasonably believes is necessary to support her claim against Cann.
A discipline case supports Lee’s use of information negative to a former client that is in a public file. A Supreme Court referee rejected the director’s charge that a lawyer breached confidentiality by disclosing a client’s criminal history. The referee reasoned, “A similar check by any member of the public would show that Hanson had been convicted of the bad check charge.” In re Fuller, at 19. The director did not appeal this conclusion. Although this conclusion is not binding precedent, it creates a large hurdle for the director to meet the “clear and convincing” standard in a later case making a similar allegation.
Publicly filed information is “generally known,” when the information is easily accessed and listed in an index. Information is not “generally known” if it is accessible only “by means of special knowledge or substantial difficulty or expense.” Restatement of the Law Governing Lawyers § 59 cmt. d. The simple fact is that today’s publicly-filed pleadings are generally known.
Opinion 24 creates an incentive for a lawyer to sue a former client, to defend her reputation. Did the board consider this incentive? Does Op. 24 serve the mission of the professional responsibility system, to protect the public?
Should the Lawyers Board solicit comment before adopting opinions?
The board did not solicit comment on Opinion 24. A draft of the opinion was very briefly posted on the board’s website.
After soliciting comment the board revised and improved other proposed opinions. A former director noted, “The process of posting a proposed opinion for public comment, established by the board, assures that all voices are heard before an opinion is adopted.” Martin A. Cole, Opinionated, Bench & B. of Minn. (Nov. 2009). (Note that a “process” may be “established” outside litigation.) Why did the board not follow its established process in adopting Op. 24?
Should the Lawyers Board issue comment with its opinions?
Board Opinions 19, 20, 21, and 22 all included lengthy explanatory comment. Such comments give an opinion legitimacy and persuasive force. Why does Op. 24 apparently reject the ordinary meaning of “controversy?” Why does the board believe Op. 24 states the “plain meaning” of the rule? Lawyers can only guess.
What if a discipline alleges, “Respondent violated Rule 1.6(b)(8), as interpreted by Op. 24?” The opinion is, at best, persuasive, not mandatory. Without an explanatory comment, however, the board has not taken its opportunity to persuade lawyers or adjudicators.
What are the bottom lines?
Les would be well advised to ignore the Carp post and not disclose confidential information, on pain of discipline under Rule 1.6.
On the other hand, Lee would be well advised that she would risk a discipline proceeding, by public posting, but she could greatly mitigate that risk by first suing Cann and disclosing exculpatory information in the suit. Lee would then have the following strong arguments against discipline: (1) “Potential controversy” was chosen to broaden the disclosure permission of the Model Rule. (2) Key words, such as “controversy,” “claim,” and “establish,” are used outside as well as inside the litigation context. (3) Comment 8 to Rule 1.6 and the Restatement allow disclosure for defense after the “assertion” or “threat” of a lawsuit. (4) Opinion 24 exceeds the board’s authority to interpret only the “plain meaning” of the rules and does not explain its conclusions. (5) Following Fuller and the Restatement (above), Lee may sue Cann, publicly file the exculpatory letter and then disclose the filing to publicly defend herself in both a court of law and the court of public opinion. (6) Equities matter and Cann will be a most unappealing ethics complainant if the director brings a charge against Lee. (7) Lee’s reliance on expert ethics advice will also be relevant.
From Opinion 24:
“When responding to comments, negative or otherwise, posted on the internet (or any other public forum) concerning the lawyer’s representation of a client, Rule 1.6(b)(8), MRPC, does not permit the lawyer to reveal information relating to the representation of a client.
“Lawyers are cautioned that, when responding to comments posted on the internet or other public forum which are critical of the lawyer’s work, professionalism, or other conduct, any such response should be restrained and should not, under Rule 1.6(b)(8), reveal information subject to Rule 1.6(a), MRPC.”
From Minnesota Rules of Professional Conduct:
Rule 1.6: Confidentiality of Information
(a) Except when permitted under paragraph (b), a lawyer shall not knowingly reveal information relating to the representation of a client.
(b) A lawyer may reveal information relating to the representation of a client if: …(7) the lawyer reasonably believes the disclosure is necessary to secure legal advice about the lawyer’s compliance with these rules; (8) the lawyer reasonably believes the disclosure is necessary to establish a claim or defense on behalf of the lawyer in an actual or potential controversy between the lawyer and the client, to establish a defense in a civil, criminal, or disciplinary proceeding against the lawyer based upon conduct in which the client was involved, or to respond in any proceeding to allegations by the client concerning the lawyer’s representation of the client.
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This post originally appeared in Minnesota Lawyer, October 2016.