This post is longer than most. You’ve been warned.
Today’s story verges on the tabloid-esque. Still, it includes a helpful reminder on the scope of the so-called “self-defense” exception to a lawyer’s duty of confidentiality.
In May, I posted Judge orders Drew Peterson’s former lawyer not to disclose information about Peterson’s missing ex-wife. 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. Kathleen’s death was originally ruled an accident. Then, after Stacy’s disappearance, Kathleen’s body was exhumed. Following a forensics examination, the cause of death was changed to homicide.
In 2012, a jury convicted Drew of the premeditated murder of Kathleen. He was sentenced to 38 years in prison. .
Joel Brodsky represented Peterson at trial. Earlier this year, Peterson filed a petition for post-conviction relief. Among other things, the petition alleges that Brodsky lied about his experience handling murder cases, failed to provide effective assistance of counsel during the trial, and threatened to withdraw if Peterson testified. Shortly after the PCR was filed, and as reported here, Brodsky told WGN Investigates that “maybe it’s time” to reveal Stacy’s whereabouts. 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.”
Peterson’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.”
Unsurprisingly, Brodsky appealed. He raised both procedural and substantive arguments. Last week, the appellate court affirmed the lower court’s ruling. WGN9 and the ABA Journal have coverage. The opinion includes references to the Rules of Professional Conduct. I’m going to focus on the court’s analysis of the confidentiality rule.
Brodsky argued Peterson’s allegation of ineffective assistance of counsel constituted a waiver of the attorney-client privilege that allowed Brodsky to respond. In support, he cited to Rule 1.6(b)(5) of the Illinois Rules of Professional Conduct. The rule is identical to Vermont’s Rule 1.6(c)(4). Both permit disclosure of otherwise confidential information when a 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.”
This is the so-called “self-defense exception” to the confidentiality rule. What’s critical to remember, and as I often mention during CLEs, is that the exception is a narrow one. In Vermont, Comment  states that the exception 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’ve made this point often in different contexts. For example, let’s assume the following:
- Lawyer represents Client.
- Client is charged with aggravated assault.
- Client agrees to a plea.
- Immediately after the change of plea hearing, Client thanks Lawyer and says “unrelated, but last summer, a friend paid me to burn down his lake house as part an insurance scheme. If they find out about that, will you represent me?”
- Later, Client isn’t so thankful. After a few months of incarceration, he files a petition for post-conviction relief alleging that Lawyer misled him about the strength of the State’s case in the aggravated assault.
I’ve explained to lawyers that it’s possible to respond to the allegation without adding “oh, and by the way, that lake house that burned last summer? You know, the one that they haven’t solved? Well, my client told me that a friend paid him to set it as part of an insurance fraud scheme.”
Back to Brodsky and Peterson. The appellate court interpreted the Illinois rule in a similar manner, stating:
- “We find clear support for a narrow waiver in the language of Rule 1.6(b)(5), stating that an attorney is permitted to respond to the extent the attorney reasonably believes necessary to establish a defense to the client’s claim. We concur with defendant’s conclusion that ‘nothing about the specific allegations of ineffective assistance of counsel made by Defendant-Appellee in his pro se petition for post-conviction relief would require Appellant to disclose any supposed inculpatory statements (especially any supposed inculpatory statements about Stacy Peterson) in order to establish a defense to such claims.’”
In sum, yes, the self-defense exception permits disclosure of otherwise confidential information to respond to certain allegations from clients and former clients. However, any disclosure made pursuant to the exception must be limited to information reasonably necessary to respond to the allegations.
As always, let’s be careful out there.
 The opinion also references Rule 3.6, the rule on trial publicity. In Illinois, it states that “an attorney who is participating in or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an administrative proceeding in the matter.” Noting that Peterson’s PCR might result in a new trial, the appellate court wrote “Few people in the history of Illinois jurisprudence have achieved Drew Peterson’s level of notoriety. We find it nearly inconceivable that any revelation about Stacy would not taking the jury pool should Peterson receive a new trial.” People v. Peterson, 2022 Il App (3d) 220206, p. 19, ¶56.