Ethics Watch

• Citation: Vol. 37 No. 3
• Year: 2025

ETHICS WATCH

Vol. 37 Issue 3 Pg. 14

South Carolina Lawyer

December, 2025

The "Self Defense" Exception to the Duty of Confidentiality

BY NATHAN CRYSTAL

The ethical duty of confidentiality is simultaneously broad and limited. The breadth is found in SCRPC 1.6(a). which defines the duty as applying to "information relating to the representation of a client."^[1] At the same time the duty is subject to numerous limitations. See Nathan M. Crystal &Grace M. Giesel, Professional Responsibility: Problems of Practice and the Profession, Ch. 3 (8^th ed. 2020). One of the exceptions to the duty of confidentiality is found in SCRPC 1.6(b)(6) (The ABA Model Rule is identical except for numbering.). which provides that a lawyer may reveal confidential information of a client (6) 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.

While usually called the "self-defense" exception, this term is a misnomer: although the rule usually applies defensively, it is clear that the rule can apply to claims brought by the lawyer, for example for legal fees.

The leading decision dealing with the "self-defense" exception is Meyer-hofer v. Empire Fire &Marine Insurance Co., 497 F.2d 1190 (2d Cir.). cert, denied, 419 U.S. 998 (1974). While the case was decided under the now outdated Gode of Professional Responsibility, it remains important under the Model Rules. The case was a securities fraud action alleging that Empire had marketed securities using a materially false and misleading registration statement and prospectus. Empire's lawyers and their firm were defendants as well. In addition, the complaint included as a defendant Stuart Goldberg, an attorney who had worked on the Empire matter but who had resigned from the firm in a dispute with the firm over the adequacy of disclosures being made in the Empire securities offering. On the same day that he resigned, Goldberg informed the SEC of his concerns about the offering, and he later filed an affidavit with the SEC about the matter. When Goldberg was named as a defendant in the securities fraud litigation, he contacted plaintiffs' counsel, informed them of his noninvolvement in the offering, and supplied them with a copy of the affidavit he filed with the SEC. As a result, the plaintiffs dismissed Goldberg from the suit. The other defendants then moved to disqualify plaintiffs' counsel from continuing in the case on the ground that they had received confidential information from Goldberg. The district court granted the disqualification motion, but the Second Circuit Court of Appeals reversed:

The charge, of knowing participation in the filing of a false and misleading registration statement, was a serious one. The complaint alleged violation of criminal statutes and civil liability computable at over four million dollars. The cost in money of simply defending such an action might be very substantial. The damage to his professional reputation which might be occasioned by the mere pendency of such a charge was an even greater cause for concern.

Under these circumstances Goldberg had the right to make an appropriate disclosure with respect to his role in the public offering. Concomitantly, he had the right to support his version of the facts with suitable evidence. Id. at 1196.

Although the court expressed some concern with Goldberg's method of disclosure — turning over to plaintiffs' counsel a 30-page affidavit with 16 attached exhibits — the court concluded that his action was the "most effective way for him to substantiate his story." Id.

While Goldberg acted properly in revealing information to the plaintiffs' counsel in an effort to obtain dismissal of the suit filed against him, his earlier actions are questionable. Goldberg apparently informed the SEC and filed an affidavit with the agency before any allegations were made against him. SCRPC 1.6, comment 12 suggests that while the self-defense exception does not require lawyers to wait until formal proceedings are instituted against them, it does require an assertion of complicity be made against the lawyer. Goldberg may have acted improperly by making a preemptive disclosure before any allegations were made against him.

More recently, the use of the internet and social media have raised issues about the application of the self-defense exception. The internet and social media provide a plethora of avenues for people to express their opinions about lawyers and law firms just as they do about restaurants and other consumerfacing entities. Occasionally, a former client posts a review or comments that are not flattering to the lawyer or firm that once represented the former client. Lawyers have queried whether they may respond to such posts to defend themselves even if such a post involves the disclosure of information protected by Rules 1.6 and 1.0(c). Lawyers question whether the exception in Rule 1.6(b) that allows lawyers to disclose to defend themselves applies in the context of online criticism. ABA Formal Opinion 406 (2021) addressed the question of the propriety of a lawyer responding to online comments, noting that Rule 1.6 prohibits disclosure of information related to the representation of the client unless an exception applies and that the exception in Rule 1.6(b)(6) is the only exception that could possibly apply. Opinion 496 concluded that an online criticism is not a "proceeding," and a response is not necessary "to establish a defense to a criminal charge or civil claim." The online criticism also does not rise to a "controversy between the lawyer and the client." Thus, a lawyer cannot disclose confidential information in response to online criticism.

ABA Opinion 496 (2021) suggests that the lawyer can ask the host of the site where the offending comment appears to remove it but cautions that the lawyer cannot disclose confidential information in so doing. Also, the lawyer can contact a client or former client directly to discuss the matter. While suggesting that no post might be best, the opinion offers the following language if the lawyer wishes to speak publicly: "Professional obligations do not allow me to respond as I would wish."

In Taylor v. Ehenger, 569 P.3d 340 (Wash.Ct.App. 2025). the Washington Court of Appeals recently addressed the application of the self-defense exception. In Taylor, attorney Alexander Thomason had represented Bert Stennes is a number of legal matters and had also engaged in business transactions with Bert, including one in which Bert loaned Thomason $400,000 to finance Thomason's purchase of real estate. It was unclear whether Thomason represented Bert in the loan transaction, but a few years later Bert forgave the loan. Thomason also represented Bert's son. Mike, in his divorce proceeding lasting several years; Bert paid Mike's legal expenses in this proceeding.

Bert died in 2017. In 2020 Bert's daughter, who had been appointed as successor personal representative of Bert's estate, brought suit against Thomason asserting claims that are common in legal malpractice cases, alleging that beginning in 2013 Thomason had represented Bert and had engaged in business dealing with him, including the $400,000 loan. Thomason filed a motion seeking court permission to use certain documents related to his representation of both Bert and Mike under the "self defense" exception to the duty of confidentiality.

Thomason made three arguments that the self-defense exception applied. First, he contended that he was involved in a controversy with his former client Mike. The court rejected this argument concluding that Thomason's controversy was with the estate in the malpractice case, and Mike was a witness not a party. Second, Thomason pointed to the fact that Mike along with other beneficiaries of Bert's estate had entered into a joint prosecution agreement to show that he was in a controversy with Mike. The court also rejected this argument concluding that the joint prosecution agreement did not change Mike's status as a witness. Third. Thomason argues that disclosure of Mike's confidential information was permitted "to respond to allegations in any proceeding concerning the lawyer's representation of the client," but the court disagreed concluding that the malpractice proceeding involved Thomason's representation of Bert, not Mike.

In an earlier case the Court had also rejected a similar self-defense claim by Thomason in response to Mike's petition to remove Bert's personal representative. Mike sought to remove the personal representative claiming that the PR was failing to investigate possible claims by the estate against Thomason for taking financial advantage of Bert. Mike's petition "detailed factual allegations underlying claims of undue influence, abuse of a vulnerable adult, and violation of attorney-client privilege." Although Thomason was not a party to this action, he sought to intervene to oppose Mike's removal petition. Thomason's opposition claimed that Mike was making allegations against Thomason to "distract and conceal" his own financial wrongdoing regarding his father. Thomason's opposition included copies of extensive financial and other records from Thomason's representation of Mike. Mike moved to seal these records, and the lower court granted the motion and awarded Mike attorney fees; the Court of Appeals affirmed the lower court's decision to seal Mike's records and the award of attorney fees.

I have reservations about the court's decisions in Taylor. The court adopted a narrow reading of "the client" under the self-defense exception interpreting it to mean the client in the proceeding which the lawyer was defending. However. Mike was the moving force behind the malpractice case when he sought to have Bert's PR removed because he was not investigating malpractice claims against Thomason. In the removal petition Mike macle specific allegations against Thomason. Mike was directly involved in the malpractice case as a witness against Thomason and as a potential beneficiary of any recovery. Moreover, Mike's confidentiality interest could be protected by an appropriate protective order in the malpractice case. Comment 18 to SCRPC 1.6 recognizes this possibility. On the other hand, if Thomason was simply trying to use Mike's confidences to attack Mike, and nothing in those confidences would provide a defense to the estate's claim, then the decision seems correct.

As Taylor and the opinions dealing with social media criticism show, the scope of the self-defense exception is unclear. Therefore, lawyers should proceed cautiously if they want to disclose confidential information under this exception. Taylor provides useful procedural guidance for lawyers attempting to use the self-defense exception to the duty of confidentiality. In the first proceeding, Thomason opposed Mike's petition to remove Bert's PR; Thomason's opposition included copies of extensive financial and other records from Thomason's representation of Mike. In the second proceeding Thomason sought court permission to use certain documents related to his representation of both Bert and Mike under the "self-defense" exception to the duty of confidentiality. The second approach is the proper way for a cautious lawyer to proceed because the first approach unnecessarily exposes client confidences, risks an ethics complaint against the lawyer for improper pre-emptive disclosure of client confidences without court authorization, and can lead to civil liability - in the first case Mike was able to recover his attorney fees. For further discussion of this exception to the duty of confidentiality, see Nathan M. Crystal, Annotated South Carolina Rules of Professional Conduct (2025 ed.).

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Notes:

^[1] Some states, most notably New York and the District of Columbia, have a more limited definition of the ethical duty.

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