Advisory Opinion 27

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State Disciplinary Board
Advisory Opinion No. 27
November 21, 1980

Ethical Propriety of Revealing Confidences and Secrets Necessary to Defend Against Charges of Professional Misconduct

Pursuant to the provisions of Rule 4-223 of the Rules and Regulations for the Organization and "Government of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board of the State Bar of Georgia, after a proper request for such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.

Facts: An attorney represented two defendants who are each charged with criminal offenses arising out of the same incident. Both defendants were later found guilty of crimes in this matter. Subsequently, each defendant filed a Motion for new trial based on, among other grounds, ineffective assistance of counsel. At the hearing on the Motion for new trial the issue of the attorney's professional misconduct is raised. Later the attorney is charged by the state Bar with violations of disciplinary standards arising out of the same events.

Question presented: Would it be ethically proper for the lawyer to reveal confidences or secrets of these clients which may be necessary to the lawyer's defense against the charges of professional misconduct?

The ethics authority applicable to this inquiry is RD 4-101 of the Code of Professional Responsibility (Standard 28 of Rule 4-102 of the Georgia Bar Rules). DR 4-101 provides as follows:

Preservation of Confidences and Secrets of Client

(A) "Confidence" refers to information protected by the attorney-client privilege under applicable law, and "secrets" refers to other information gained in the professional relationship that the client has requested to be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.

(B) Except when permitted under DR 4-101

(C), a lawyer shall not knowingly:

(1) reveal a confidence or secret of his client:
(2) use a confidence or secret of his client to the disadvantage of the client;
(3) use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.

(C) A lawyer may reveal:

(1) confidences or secrets with the consent of the client or clients affected;
(2) confidences or secrets when permitted under Disciplinary Rules or required law or court order;
(3) the intention of his client to commit a crime and the information necessary to prevent the crime;
(4) confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.

(D) A lawyer shall exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, except that a lawyer may reveal the information allowed by DR 4-101 (C) through an employee.

Another relevant consideration to this inquiry is the evidentiary rule known as the attorney-client privilege. This rule is stated at Georgia Code Annotated 38-419:

" 38-419 Communications to Attorney by Client

Communication to any attorney, or his clerk, to be transmitted to the attorney pending his employment, or in anticipation thereof, shall never be heard by the court. So the attorney shall not disclose the advice or counsel he may give to his client, nor produce or deliver up title deeds or other papers, except evidences of debt left in his possession by his client. This rule will not exclude the attorney as a witness to any facts which may transpire in connection with his employment."

Also it should be noted that EC 4-4 recognizes that "the attorney-client privilege is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his client."

With these rules in mind it appears that DR 4-101 (C) (4) specifically controls the situation presented by this inquiry. This rule holds that "a lawyer may reveal the confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct." (emphasis added)

The policy considerations applicable to this situation are stated in Hyde v. State, 70 Ga App. 823, at 827:

"Where an attorney's fidelity as to a transaction has been attacked, with the imputation that he has been unfaithful to the interest of his client, it would be a harsh rule to permit testimony by the client in a cause, spread upon the public record, of this character, and not to permit the attorney to explain. The rule is settled by all the authorities that in litigation between the client and his attorney, the attorney, of course, has the right to make a full disclosure bearing upon the litigation, for the purpose of defending his property rights; the defense of character, where publicly attacked is just as important, and to some more so, than property rights; it would violate a principal of natural justice and inherent equity to say that the right of the attorney's defense is merged in a privileged communication when the client himself makes a public accusation (the relationship between client and attorney, having been private as to that particular matter, has become public by the act of the client) the spirit of the rule ceases when the client charges fraud. By making the attack in his unsworn statement upon the character and professional conduct of the attorney, the defendant waived his right to have their transactions considered as privileged (Code, 38-419), and the attorney was competent to give testimony to show that he did not act basely in the transaction, as his one-time client claimed. And it was not error to permit the attorney to testify to facts so far as necessary to defend his character, notwithstanding the rule against the disclosure of confidential communications between attorney and client."

Accordingly, the State Disciplinary Board is of the opinion that it would be ethically proper for the lawyer to reveal the confidences or secrets of these clients in any proceedings in which they may be necessary to defend the lawyer against charges of professional misconduct.