Editor's Note: Refer to Rules 1.6(b) and (c).
CONFIDENCES AND SECRETS OF A CLIENT- An attorney may reveal communications with his client when required by court order and the lawyer is accused of wrongful conduct.
The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the following facts:
A lawyer represented a client in a criminal case. After a trial, the client was convicted and sentenced to the Mississippi Department of Corrections. After commencing his sentence, the client moved pro se in the trial court for an out-of-time appeal, and alleged that his lawyer failed to appeal his conviction as he requested. In considering the motion, the court ordered the lawyer to submit an affidavit concerning his discussions with the client concerning an appeal.
Without violating the Code of Professional Responsibility, may the lawyer reveal communications with his former client in an affidavit required by court order?
This inquiry is governed, in part, by Opinion 95 of the Mississippi State Bar. In that opinion, the committee that under Disciplinary Rule 4-101[C] a lawyer may reveal confidences or secrets when required by law or court order.
Additionally, in this situation, the work and conduct of the lawyer has been attacked by the client. Disciplinary Rule 4-101(C)(4) states that a lawyer may reveal "[c]onfidences or secrets necessary. . . to defend himself. . . against an accusation of wrongful conduct." This exception is not limited to proceedings in which the lawyer is a party; it should apply in any judicial proceeding where the lawyer is accused of wrongful conduct.
It would appear incongruous for a client to allege misconduct or incompetence of a lawyer and then have the lips of that lawyer sealed. Fairness should require a full exploration of facts surrounding a lawyer's work for a convicted client.
The committee is, therefore, of the opinion that a lawyer may be required by court order to reveal communications and discussions with his client when the client has accused the lawyer of wrongful conduct.