Mike at Crime & Federalism presents an interesting and disturbing question.
When a client files a grievance against a lawyer, the lawyer may breach some aspects of the attorney-client privilege to defend herself. If a client says, “My lawyer never returned my e-mails,” the lawyer may share e-mails with the State Bar to prove that he was responsive to client demands. That rule is fair, since a client shouldn’t be able to deny his lawyer the right to defend herself.
Enter the Internet.
What if a former client writes: “My lawyer was terrible. He never returned my calls or e-mails. I had a million-dollar case, and she blew it!”
Hardly a far-fetched scenario, and quite likely one that has and will continue to arise given the ubiquitous nature of the internet. Indeed, this is the dark side of Avvo’s putatively consumer-centric approach, providing a forum for client gripes against their lawyer under the guise of transparency.
Let’s make the hypothetical a bit tighter. Assume the client isn’t a nutjob and her beef is based on a good faith view of her experience. The complaints aren’t malicious, but subject to reasonable dispute. The problem is that any substantive response by the attorney would require disclosure of confidential communications.
As Mike correctly notes, the privilege is owned by the client, not the lawyer. It’s abrogated when the client files a grievance against the lawyer, both as a practical matter to allow the attorney to explain and defend his actions, as well as a legal matter as the client, by affirmatively offering confidential communications to others outside the privilege, has waived it. But Mike states:
Under the current Rules of Professional Conduct, it would certainly be unethical for the lawyer to write: “John Smith called me 5 times each day. He asked the same questions over and over again. After evaluating his case through discovery, we realized his case was marginal. We told him to settle the case for $25,000 – nuisance value. He refused. The trial court dismissed the case on summary judgment. Now he’s angry. By the way, you can read the case filings here, here, and here to decide for yourself whether we blew a huge case.”
I’m not entirely clear that’s accurate. Waiver of privilege is an all or nothing proposition. Once a client discloses confidential communications to others, it constitutes a waiver. It’s the client’s to waive, and there’s nothing to prevent her from doing so. It may be stupid and foolhardy, and the client may not realize the significance of disclosure and waiver, but it’s her right to let the world know what happened within the sanctity of the attorney/client relationship. Once waived, however, the privilege is extinguished. Like pregnancy, it’s not just a little waived. It’s waived. End of privilege.
Using Mike’s hypothetical then. the question is whether the client’s disclosure served to waive the privilege. It’s of no legal consequence whether the client intended to do so. Waiver can be unintentional, and can even occur by the mere failure to object to disclosure by asserting the privilege. Should the client believe that she can say whatever she wants, secure in the belief that her attorney’s hands are tied, it doesn’t change things.
It seems to me that in Mike’s hypo, the client has clearly waived privilege by her disclosures, and thus freed the attorney to respond without ethical lapse from disclosure of privileged communications. But that’s not quite the end of the problem.
The duty to protect confidential communications isn’t our only ethical obligation to our clients. We also have a collateral ethical responsibility to protect them, even from themselves. So the freedom to dispute a client’s attack by disclosing otherwise privileged communications must be tempered by the fact that, angry or not, accurate or not, they are still our client. I hasten to add that even a former client, one whose representation has concluded or one who has replaced us with new counsel, remains our client. Forever. No matter how much you hate them.
Thus, while there may be no ethical or legal impediment to the use of privileged communications to fend off an attack, and while waiver means waiver, we nonetheless have a duty to disclose no more than is necessary to respond, and a duty to do no harm to the client in the process. While the best defense may be a good offense under other circumstances, we’re constrained to use the least harmful defense possible.
Clearly, the limits placed on our ability to lash back at those who might lash out at us puts lawyers at something of a disadvantage in a street fight, and certainly an attack on the internet can bear all the indicia of a street fight. But we’re still lawyers, and still subject to the full panoply of ethical obligations to our clients. It sucks to be wrongly attacked. It sucks that we can’t come out swinging and beat the nemesis into submission. It’s only natural to want to not merely win, but crush someone who you feel wrongly accuses you.
And yet, control the visceral reaction, the desire for blood, and remember what it means to hold the privilege of representing another human being.
Some days, it sucks to be a lawyer. But other days it pretty darn good. You’ve got to take the good with the bad.