I like to use to imagery to make points related to legal ethics & professional responsibility. Here’s one of the images I use when discussing a lawyer’s duty of confidentiality:
What follows in today’s post invokes an image that’s similar, but with a critical distinction. Imagine a picture in which it’s not me keeping me from disclosing confidential information. Rather, it’s a judge ordering me not to follow through on a threat to disclose a former client’s confidential information.
Last week, an Illinois judge ordered a lawyer not to disclose information related to the whereabouts of a former client’s missing wife. Among others, the ABA Journal, WGN 9, NBC5, and the Chicago Sun-Times covered the story.
Many readers might have heard of the lawyer’s former client: Drew Peterson. Peterson is a former police officer who gained national attention in 2007 when his fourth wife, Stacy Peterson, disappeared. Stacy has never been found.
Stacy’s disappearance refocused attention on the 2004 death of Kathleen Savio, Drew’s third wife. Savio’s death was originally ruled an accident. Then, after Stacy’s disappearance, Savio’s body was exhumed. Following a forensics examination, Savio’s cause of death was changed to homicide.
In 2012, a jury convicted Drew of the premeditated murder of Savio. He was sentenced to 38 years in prison. In 2016, he was sentenced to an additional 40 years after being convicted of soliciting the murder of the prosecutor in the Savio case.
Joel Brodsky represented Drew in the Savio trial. Last week, and as reported here, Brodsky told WGN Investigates that “maybe it’s time” to reveal Stacy’s whereabouts. Referring to Drew, Brodsky added:
- “It’s something that weighs on my conscience. I would never do anything that would hurt a former client, but he’s in prison, he’s never getting out. So, if he’s a man, he’d say ‘I’m done, here’s what happened,’ so people can have closure.”
Brodsky went on:
- “I know everything about both of his wives – everything. I feel bad about Drew still not taking responsibility and Stacy still being missing. I’m thinking about maybe revealing what happened to Stacy and where she is.”
According to WGN 9, Brodsky’s statements came in response to Drew Peterson’s recent request for post-conviction relief in which he argues that Brodsky failed to provide effective assistance of counsel. Drew’s lawyer requested an order prohibiting Brodsky from revealing the information. A judge granted the order, stating “[t]his may be the most vile crime in the U.S. but [defendants] still have a right to speak in confidence with their attorney.”
Brodsky appears not to agree with the judge’s decision. During the hearing, Brodsky argued that Drew’s allegations of ineffective assistance allowed Brodsky to disclose client confidences. Following the hearing, WGN reports that “Brodsky said the question of whether he’ll reveal what happened to Peterson’s former wives is not ‘if’ but ‘how.’ He said: ‘That’s going to happen.’”
I don’t suppose it’s likely that a Vermont attorney will find themselves similarly situated to Brodsky. Still, I’m going to use the Brodsky story as a segue to review the duty of confidentiality that Vermont lawyers owe to former clients.
You are a lawyer admitted to practice law in Vermont. Let’s assume you represented me in a trial in which I was convicted of the 2014 murder of X, my first wife. Let’s also assume that Y, my second wife, has been missing since 2015 and that some suspect me to have been involved in Y’s disappearance. Finally, let’s assume that when you represented me in X’s matter, I told you what happened to Y.
The duty of confidentiality that you owe to me is set out in V.R.Pr.C. 1.9(c). The rule states that a lawyer shall not:
“(1) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client, or when the information has become generally known; or
(2) reveal information relating to the representation except as these rules would permit or require with respect to a client.”
As I interpret the rule, my statement about Y is information related to your representation of me in X’s matter. If my interpretation is correct, I’m entitled to the protection afforded by Rule 1.9.
Indeed, Brodsky does not seem to argue that Drew isn’t a former client to whom he owes a duty of confidentiality. Rather, he argues that the gag order violates his First Amendment rights and, further, that Drew’s claims of ineffective assistance of counsel authorize Brodsky to disclose otherwise confidential information.
Returning to the hypo in which you represent me in Vermont, if you were to make an argument like Brodsky’s, you’d argue as follows:
- Rules 1.9(c)(1) and (2) allow you to use or reveal my confidential information as permitted by other rules; and,
- Rule 1.6(c)(3) permits you to disclose information related to your representation of me.
Now, I know what you’re thinking: what’s that Mike? How does Rule 1.6(c)(3) permit me to disclose information about you, my former client?
Short answer: if you’re thinking of disclosing my involvement in Y’s disappearance, I’m not sure that it does.
V.R.Pr.C. 1.6(c)(3) sets out Vermont’s so-called “self-defense” exception. It permits a lawyer to disclose information related to the representation of a client if the
- “lawyer reasonably believes that disclosure is necessary to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.”
So, your argument would be:
- Mike is a former client to whom I owe a duty of confidentiality.
- Rule 1.9(c) prohibits me from using or disclosing information related to my representation of Mike, except as authorized by other rules.
- Mike alleges that I provided ineffective assistance of counsel while representing him in the matter in which he was charged with the murder of X.
- In that Mike has made allegations about my representation of him, Rule 1.6(c)(3) authorizes me to disclose his involvement in the disappearance of Y.
Here’s why I, as your former client, would beg to differ.
Comment 14 to Rule 1.6 states that paragraph (c) permits disclosure “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.” It also states that “a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to accomplish the purpose.”
I get it. Yes, I’m alleging that you didn’t know what you were doing when you represented me in the case in which I was convicted of murdering X. But what I told you about Y has nothing to do with what you did for me in X’s case. The fact that I’m in jail for life isn’t an exception to the duty of confidentiality you owe to me. That is, “what’s one more life sentence” isn’t among the exceptions listed in Rule 1.6. You can defend against my allegations without mentioning a single thing about Y.
I’ve made this point often in different contexts. For example, it’s not uncommon for someone convicted of a crime to allege that their lawyer failed to explain the collateral consequences of a conviction before the client agreed to a plea deal. Assuming the client pled guilty to something other than possession of child porn, I’ve explained to lawyers that it’s possible to respond to the allegation without adding “oh, and by the way, my client once told me that he has child porn on his phone.”
Finally, and back to the hypo in which you represented me, I’d likely file a disciplinary complaint against you for even suggesting that you might disclose what happened to Y. In so doing, you’re basically stating that I know what happened to Y, and that I admitted my involvement in confidence.
In closing, I’ll repeat what I’ve often stated at CLEs and in response to ethics inquiries. Yes, V.R.Pr.C. 1.6(c)(3) authorizes lawyers to respond to certain allegations related to their representation of a former client. The response, however, should be limited to the disclosure(s) necessary to respond to the allegations. That is, I do not view the rule as license to reveal the entire basket of a former client’s dirty laundry.
For some, the Brodsky/Peterson matter might ring familiar. Indeed, it wasn’t far from here that, almost 50 years ago, two New York lawyers learned in confidence the location of two of their client’s victims. You can read more about the so-called “dead bodies case” in the ABA Journal’s 2007 article The Toughest Call. The New York lawyers took a different approach than Brodsky.
Finally, given today’s environment, I wonder how far we are from the day when certain clients are deemed unworthy of the protections of Rule 1.6 and the attorney-client privilege. I understand that each of us must do what allows us to sleep at night. That’s fine. As long as we understand that a consequence of sleeping might be waking up without a license to practice law.**
As always, let’s be careful out there.
** Caveat 1: To be clear, I don’t know what the rules are in Illinois. I have no idea whether Stacey’s disappearance was an issue in the Savio trial or whether Stacy’s disappearance is related to Drew’s allegations that Brodsky provided ineffective assistance in the Savio matter. My thoughts on the duties that Vermont lawyers owe to their former clients are limited to the application of the Vermont Rules of Professional Conduct to the hypo involving X, Y, and me.
** Caveat 2: Brodsky’s license to practice law in Illinois has been suspended since 2019 as a result of misconduct in unrelated matters.