Don’t gobblefunk around with words.
-Roald Dahl, The BFG-
As lawyers, we live for certainty and struggle with ambiguity. Self-regulation of the legal profession is important and is designed to protect the public and maintain the integrity of the legal system. That sometimes requires that a lawyer report another lawyer for certain professional misconduct. Protecting client confidences, however, is sacrosanct and is the underpinning of trust in our legal system. What happens when those two obligations intersect in a situation where a prospective (lawyer) client seeks representation for his or her own professional shortcomings?
Let’s start with a primer on confidentiality under the Rules of Professional Conduct, shall we? RPC 1.6 sets forth the confidentiality obligations a lawyer has to existing clients. Most information relating to representation of a client is protected even if the information is widely known to others. Some information is subject to certain discretionary and mandatory disclosure exemptions. RPC 1.9 sets forth the confidentiality obligations a lawyer has to former clients. All information relating to the representation of a former client is protected unless it meets the definition of “generally known” information, which primarily refers to information contained in a publicly available database. It should be presumed that a client can only be a former client if the client was once an existing client. RPC 1.18 sets forth the confidentiality obligations a lawyer has to prospective clients. Those obligations mirror the obligations to former clients under RPC 1.9, except as it relates to information protected by RPC 1.6, as no attorney-client relationship was ever formed.
Now let’s jump to the rule which involves the reporting of professional misconduct. RPC 8.3(a) states that “[a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects, shall (emphasis added) inform the Disciplinary Counsel of the Board of Professional Responsibility.” RPC 8.3(c) states that “[t]his Rule does not require disclosure of information otherwise protected by RPC 1.6 . . .” RPC 1.6, however, does not attach to prospective clients under the Tennessee rules. Comment [4] attempts to clarify the situation by stating “[t]he duty to report professional misconduct does not apply to a lawyer retained (emphasis added) to represent a lawyer whose professional conduct is in question. Such a situation is governed by the Rules applicable to the client-lawyer relationship.”
What the heck happens if the lawyer is NOT retained? Where are the protections for both the lawyer who must consider his or her reporting obligations and the (lawyer) client who consults with that lawyer with an expectation of privacy and confidentiality? The current wording of Tennessee’s Rules of Professional Conduct don’t seem to offer much protection to lawyers in this situation. The only fallback position lies in Tennessee Code Annotated § 23-3-105, an archaic statute which embodies the common law principles of the attorney-client privilege. T.C.A. § 23-3-105—Privileged Communications states that “[n]o attorney, solicitor or counselor shall be permitted, in giving testimony against a client or person who consulted the attorney, solicitor or counselor professionally, to disclose any communication made to the attorney, solicitor or counselor as such by such person during the pendency of the suit, before or afterward, to the person’s injury.” Now there’s a mouthful. And, if that’s not enough, T.C.A. § 23-3-107 is probably enough to get you to clam up. T.C.A. § 23-3-107—Penalty for Improper Testimony states that “Any attorney offering to give testimony in any of the cases provided for in §§ 23-3-105 and 23-3-106 shall be rejected by the court, and the attorney commits a Class C misdemeanor, for which, on conviction, the attorney shall also be stricken from the rolls, if a practicing attorney.” Wow! That is harsh! Attorneys who have stolen thousands of dollars from their clients have not suffered such permanent fate. It makes one wonder whether even mandatory reporting under RPC 1.6(c) deserves additional scrutiny. Ouch! My head is beginning to hurt. Thank goodness the Rules of Professional Conduct are “rules of reason”. They even state as much in the preamble and scope of our rules. See Tenn. R. Prof. Cond., Scope, Cmt. [15].
Other jurisdictions contain similar language as Tennessee, but some jurisdictions incorporate the protections of RPC 1.6 in the prospective client rule. I think the DC Bar has done a better job of clarifying any confusion that currently exists in Tennessee. The DC version of RPC 1.18(b) states that “[e]ven when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as permitted by Rule 1.6.” The DC version of RPC 1.6 clarifies the issue further in its Comment 9—The Commencement of the Client-Lawyer Relationship, which states that “[p]rinciples of substantive law external to these Rules determine whether a client-lawyer relationship exists. Although most of the duties flowing from the client-lawyer relationship attach only after the client has requested the lawyer to render legal services and the lawyer has agreed to do so, the duty of confidentiality imposed by this rule attaches when the lawyer agrees to consider whether a client-lawyer relationship shall be established. Other duties of a lawyer to a prospective client are set forth in Rule 1.18.” The DC version of RPC 8.3(c) states that “[t]his rule does not require disclosure of information otherwise protected by Rule 1.6 or other law.” Taken full circle, it is clear that the DC Bar treats prospective clients the same as existing clients and only requires mandatory disclosure of client information in very limited circumstances and discretionary disclosure in other limited circumstances.
Tennessee lawyers who are facing disciplinary action or need counseling related to their professional conduct should not feel real comfortable with the way Tennessee’s rules are written. Neither should attorneys who represent such lawyers. Tennessee should not discourage prospective clients from consulting with an attorney about their professional conduct and the current rules could have a chilling effect on that process. There are many reasons outside of the prospective client’s control which could interfere with establishment of an attorney-client relationship: lack of financial resources, unavailability, conflict of interest, etc. Perhaps it is time to review the current rules and consider relevant changes. In the meantime, buckle up and clam up for safety.