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 94-24
Attorney A was employed by a legal services agency under the supervision of Director. Director terminated Attorney A based upon various acts of alleged substandard performance, including by way of example, failure to file court papers in a timely manner. Attorney A wishes to appeal Director's decision to the agency board, as allowed by contract, but in order to respond to Director's claims that Attorney A performed in a substandard manner, Attorney A may need to disclose confidential client information to the board.
Question:
Can Attorney A, in the course of an appeal from termination before agency board, disclose confidential client information?
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 Attorney A has engaged in substandard performance 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.
(Note: The committee expresses no opinion regarding whether information revealed to the agency board is disclosure for purposes of Rule 1.6 but assumes for the opinion that it is.)