UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 94-23
Attorney A is under investigation by Social Security Administration (SSA) for possible misconduct in connection with his client, a Social Security disability claimant. At stake is the attorney's right to continue to represent claimants before the Agency. There is no grievance proceeding pending anywhere else against Attorney A.
Question:
Can Attorney A disclose or discuss confidential communications, which occurred with his client, in defending himself before the Agency?
Summary:
Pursuant to Rule 1.6(b)(2) of the South Carolina Rules of Professional Conduct, Attorney A would be allowed to disclose confidential information.
Opinion:
South Carolina Rules of Professional Conduct provide in Rule 1.6(b)(2) that a lawyer may reveal confidential information to the extent a lawyer reasonably believes necessary in order "To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client ... or to respond to allegations in any proceeding concerning the lawyer's representation of the client". Since the facts indicate that this is a proceeding in which arises from allegations that the Attorney has engaged in misconduct in his representation of the client, the lawyer would be allowed to reveal such confidential information as may be necessary to respond to or defend against the allegations. The Comments to the above quoted Rule caution that the attorney should only reveal that information that is necessary, in his opinion, to respond to the allegations.