A Rare Sighting of the Attorney Self-Defense Exception

This article was originally published July 28, 2020.

From their earliest time in law school, would-be lawyers learn that protecting a client’s confidences is sacrosanct, zealously guarded except under extreme circumstances such as when necessary to prevent a death or a client crime. But not all the exceptions to the disclosure rules are so high-minded, and one is primarily designed to protect lawyers: the so-called attorney “self-defense” exception.

Rule 1.6(b)(5) of New York’s Rules of Professional Conduct allows a lawyer to disclose confidential information when the lawyer reasonably believes it necessary “to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct.” Neither the rule nor case law requires that the client make the accusation. In the seminal case of Meyerhofer v. Empire Fire & Marine Ins. Co., 497 F.2d 1190, 1194-96 (2d Cir. 1974), cert. denied, 419 U.S. 998 (1974), a lawyer was free to disclose confidential client information in an effort to avoid charges of complicity in client fraud leveled by the Securities and Exchange Commission and in response to accusations by victims. Nor does it require that the accusation be part of a formal proceeding. See ABCNY Op. 1986-7 (allowing disclosure to deter the filing of a formal charge is fair because the lawyer can avoid the “the cost and other burdens” of defense and the “damage a public charge can inflict on a lawyer’s reputation.”)

Cases under the self-defense exception in New York are quite rare, so it is worth noting Southern District of New York Judge Paul Engelmeyer’s recent memorandum opinion in Oorah, Inc. v. Kane Kessler, P.C., 17 Civ. 7175 (July 20, 2020). The court granted a law firm’s request – over its former clients’ objections – to disclose confidential and attorney-client privileged information, citing the self-defense exception as one ground for its decision.

In Oorah, the plaintiff sued its adversary’s counsel (Kane Kessler) under Judiciary Law Section 487, which permits treble damages against an attorney “who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive” the court or a party. Oorah asserted that Kane Kessler assisted its clients (Covista and Birch) in avoiding their obligations to Oorah by making deceptive arguments.

In an attempt to show that it did not act with intent to deceive, Kane Kessler identified approximately 175 potentially privileged documents between it and its by-then former clients that it wished to produce to the plaintiff in advance of depositions. (Presumably, the lawyers hoped, as in Meyerhofer, that the documents would show that the lawyers themselves were misled). Kane Kessler appropriately asked for – and received – consent from the clients, and produced the documents to Oorah. However, shortly before the depositions were to begin, Covista advised Kane Kessler that it would assert attorney-client privilege over communications between them.

In response to a joint letter from Kane Kessler and Oorah, the court first found that the former clients had waived privilege by acquiescing in the earlier production. It then turned to Rule 1.6(b)(5). The court had no difficulty finding that a lawsuit alleging violation of Judiciary Law Section 487 was an “accusation of wrongful conduct” and, citing Trepel v. Dippold, 2005 WL 2206800 (S.D.N.Y. September 12, 2005), noted that the rule applied even when the accusations were made by a third-party, Oorah. The court also found it significant that the disclosed confidences were specifically subject to a confidentiality agreement between the parties.

The decision does not eliminate uncertainty for the lawyers. Lawyers could still wind up facing claims from their client (or disciplinary charges) if they exceed the scope of the disclosure permitted under the self-defense exception. Comments to the Rule specifically provide that disclosure must be no greater than the lawyer reasonably believes necessary for self-defense, a limitation that is particularly important when, as in Oorah, “accusations of wrongdoing in the representation of a client have been made by a third party rather than by the client.”

Further, while the ruling presumably allows Kane Kessler and its lawyers to disclose confidences necessary to defend themselves, it does not follow that the former clients would be compelled at later depositions to testify on the same subjects. Testimony by an attorney pursuant to the self-defense exception presumably does not constitute a general waiver because the privilege remains with the client.

The attorney self-defense exception remains a curious kink in the jurisprudence surrounding an attorney’s right to disclose confidential and privileged information. Because courts and disciplinary regulators may be suspicious of lawyers’ unilateral disclosure of client confidences in order to protect themselves, attorneys are well-advised to do as Kane Kessler did in Oorah and first notify and seek consent to disclosure from the affected clients and, failing that, then seek a ruling from the court in advance of invoking the exception.