Tuesday, November 14, 2006

A Confidentiality Dilemma

by Mike Frisch

Here's a case that can serve as a teaching tool regarding the perils of making disclosures adverse to a client even where the client has threatened and intimidated the lawyer.  In re Ponds involved a lawyer who represented a client on a federal weapons charge. The client had prior convictions for offenses including assault with intent to disable. The client was released on home confinement with work-release privileges. He stopped cooperating with the conditions of release and a warrant for his arrest was issued.

Shortly thereafter, the client appeared at the lawyer's office with another man known as "Bones." They pressured the attorney to write a retainer refund check for $5000. The hearing committee in the bar case found that the attorney acted as a result of fear for himself and his office staff. As soon as the client left, the attorney left a voice mail message with the AUSA describing the events. The attorney also stopped payment on the check.

The attorney then filed a motion to withdraw that described the office encounter and related certain legal advice that the attorney had given. Applying Maryland's confidentiality rule, it was found that the disclosure of information relating to the client's whereabouts and knowledge of the warrant was protected by the duty of confidentiality. The disclosures were not necessary to establish a defense to a potential charge of aiding the bail jumping because of the stop payment order on the check. Public censure was imposed in recognition of the difficult circumstance confronted by the lawyer.

The lesson is clear. Whenever a lawyer discloses information adverse to the client, such disclosures must be strictly limited to those permitted by the applicable rules.


Ethics, Privilege | Permalink

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