Lawyer-client privilege and non-payment

Although this is from a TV show, I’m looking for a real world answer. In this week’s episode of Harry’s Law (takes place in Cincinnati Ohio but I welcome answers for other areas), a lawyer finds out that his client has been lying to him about her case and committing a fraud in the process. He tells her that his fee is $15,000 which although steep she should pay because one exception to lawyer-client privilege is non-payment of fees. Does this even remotely resemble real life exception? It seems like that sort of exception could only be used for the purposes of extortion.

Nope. A lawyer cannot testify against an ex-client (except for very limited circumstances, like the client planning crimes with said lawyer).

I didn’t see the episode in question, though. So I’m not sure what he’d be exempt for. A lawyer could testify that a client didn’t pay him.

Battling legal TV shows - According to Law and Order, there is no possible way a lawyer can testify to what a client told him while he was their lawyer. The only exception was if the client told the lawyer he was planning to commit a crime (i.e. murder), the lawyer had a duty to prevent that crime. (L&O seems to spend a bit more effort to be accurate about points of law, although like most TV, it sometimes has ineresting lapses in reality). The client can waive the privilege, but the lawyer cannot.

I suppose if the lawyer isn’t paid, he can terminate the relationship - but as we see in real life too, during a court case they seem to need the judge’s permission to withdraw. I would imagine (any lawyers in the house?) that the lawyer would have to make it very very clear to the client - “from this moment I am not your lawyer, anything you say to me from now on I can be forced to testify about.”

Many fiction episodes IIRC have the alwyer telling a friend “pay me a dollar - good, I’m your lawyer now, and what you just told me is covered under confidentiality.” However, I bet there’s plenty of case law over what constitutes the start and end of the legal relationship, and I bet payment is not the only indicator. I bet even if the lawyer is not really an acredited lawyer, if the client believes he is covered, the fake lawyer’s testimony is inadmissible.

It’s in Ethical Rule 1.6 - a lawyer may reveal what is reasonably 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.
-Model Rules of Professional Conduct, adopted in whole or in part in most jurisdictions.

So a lawyer may testify, to the extent it is required, to defend himself against malpractice, for instance, or resolve a fee dispute – both examples of disputes between a lawyer and a client – or explain why he was not part of a conspiracy to commit a crime – conduct in which the client was involved.

1)Re the fraud. If the client is committing a fraud (a crime) then the lawyer will depending on jurisdiction might be under a duty to report.

  1. Re the lack of fees, answer no. The privilege attracts at the time of the giving of advice irrespective of fees.

Yes, just to clarify, the fact that an attorney has not been paid a fee, or has a fee dispute with a client, or a malpactice dispute with a client, etc., does not mean the lawyer-client priv. has evaporated. The lawyer may testify to those particular matters, in a court of law, in a proceeding about those matters. That’s it.

As Hello says – the fact that the client didn’t pay your bill doesn’t mean the privilege goes away. BUT. If you then have to sue the client for non-payment and the subject of the conversations becomes relevant to that dispute – for instance, you have to prove to the court that you earned those exorbitant fees because your client really was a huge crook – that can give you the right to testify. Note that there’s also a rule that lawyers should avoid escalating payment disputes to lawsuits whenever possible, but sometimes you have to go there.

I’m talking U.S. law; the law of other jurisdictions might be different. Also, the precise rules of the privilege are usually governed by state law and will differ from state to state, although AFAIK the above is rougly accurate everywhere in the U.S.

–Cliffy

“My client is presumed innocent until proven broke.” – Wizard of Id

First, the answer to the OP may depend on the jurisdiction. Not every jurisdiction adopts the Model Rules from the ABA in their entirety. In CA, for example, this .pdf of Opinion 519 from the L.A. County Bar Association’s Professional Responsibility and Ethics Committee states that

Note, this is contradictory to Model Disciplinary Rule 4-101©(4), second clause, quoted below. Perhaps it may not be a violation of a CA ethical rule, but rather an actual statute.

The Disciplinary Rule likely to be at issue is DR 4-101. (Scroll down a ways to the Rule) Confusingly, they define Confidence as privileged information and Secret as confidential information. (The numbers within the quote refer to endnotes in the linked rule.)

So, according to this Model Rule, you can break privilege as an attorney as necessary to establish or collect your fee. Again, check with the relevant jurisdiction to see if it has adopted this Model Rule. And, while breaking privilege may be ethically O.K. in this situation, check to see if there is another state statute prohibiting this conduct. As Cliffy noted above, revealing client confidential and privileged information is disfavored, but allowed if there’s no other way to get the information before the tribunal hearing the fee dispute, and if the information is material to the dispute. From Opinion 90-2 of the Florida Bar,

^
You have mixed up two different situations. One is revealing confidential communications in order to defend allegations brought by a third party the second is for the purposes of recovering fees from the client.

Also you cannot reveal the substance of what was given only that i) advise was given and ii) to the extent necessary fo prove the fees are owned.

No, Gray Ghsot is right – read his cites. Presumably the rules are different where you practice. (Pakistan, yes?)

–Cliffy

I actually think AK84 may be correct on this one, at least regarding whether DR 4-101 allows an attorney to reveal “Confidences” in order to defend charges brought by a 3rd party. I only cited the CA Opinion as evidence for the proposition that an attorney’s breach of a client’s existing attorney-client privilege, while permissible according to a Model Rule, may still subject the attorney to liability under another set of rules. I did that as a, “Hey, watch out for other jurisdictions and other statutes that may apply warning.” Where I screwed up was claiming that the CA situation was in direct conflict with DR 4-101©(4). If the CA situation isn’t covered by 4-101C4, then there’s no conflict.

The rule section states that “A lawyer may reveal confidences or secrets necessary to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.” [Emphasis added]. The Rule doesn’t state from whom the accusation of wrongful conduct has to come. I then made the leap that it would work if the accusation came from a third party, arising out of work the lawyer made for the client, which I think was the case in the interesting fact pattern in the cited CA Opinion. (Go read it if you haven’t; it’s an interesting application of privilege and conflicts in a bankruptcy context)

But I think, given the endnote’s content (quoted below) that the Rule is clearly referring to accusations made by the client. And so, if the Rule only excuses revealing client confidences when the client is accusing the attorney, then the Rule doesn’t apply in the case where a third party is accusing the lawyer. If it doesn’t apply, then there’s no conflict, and I was mistaken in stating there was one. End note quotes to follow.

I think I finally see the issue. For the OP, the situation was the lawyer telling his client that an exception to a/c privilege is for non-payment of fees. This is true, as 4-101©(4) tells us, but only, as AK-84 says, in order to reveal such confidences or secrets as necessary to collect your fee. Usually, in American privilege law, the fact that a lawyer was consulted is not privileged information. Nor is the amount of the fee that was paid. Nor are the dates or times on which legal advice was sought. They may constitute “Secrets” according to DR 4-101 (Client confidential information) that the lawyer may reveal to establish or collect the fee, but they normally aren’t privileged. The substance of what was conveyed from lawyer to client is privileged. But that normally doesn’t have to be established in order to prove that legal advice was sought, when, and for how long: the usual factors that determine a bill for legal services. If the substance of the communication did have to be disclosed—come up with the hypo yourself—in order to establish a fee, then C(4) would allow you to do so.

Saw the episode - does it make a difference -

this was not testimony or things the client told the attorney during the course of the case - the lawyer wittnessed the client - after the conclusion of the case - paying off the witness for the testimony during the case.

In other words, he witnessed the actions - in a public place - he was not ‘told’ the issue at hand in confidence.

Rules are similar.

Please re read the California cite again

*Under current California law, an attorney cannot, without his or her former or present client’s consent, disclose the client’s privileged communications with the attorney or the client’s confidential information, for the purpose of defending allegations brought against the attorney by a third party. No matter how critical the client’s information is to the lawyer’s defense, there is no statutory “self-defense” exception to the attorney-client privilege or the lawyer’s duty to maintain the confidentiality of client information under Business and Professions Code § 6068(e)

This specifically mentions allegations brought against a third party. The Model ABA rules cited mention for the purposes of obtaining fees.

On the issue of fees, I can reveal communication to the extent and ONLY to the extent necessary to establish a claim. So if I am not getting paid for money owed after submitting a Counsel’s Opinion for instance, I can show an email exchange which has been suitably redacted to establish my right to fees. I cannot for instance put up the opinion unless its the only way to establish my claim.

IANAL, but from my understanding there’s no privilege at all there: there was no communication between the client and lawyer, so there’s nothing to protect, and even if there was, doesn’t the third party’s presence destroy the privilege anyway?

In fact, wouldn’t the lawyer have an obligation as an officer of the court to report this kind of subordination of the justice system?

Am I missing something, or this this some beautifully tautological drafting?

hello everyone,

i’m not your lawyer but in real life i practice in the field of legal ethics and have taught the topic for about 30 semesters at a variety of US law schools.

i haven’t seen the show described in the first post above, but the set-up of the scenario seems tailor made to give the lawyer the discretion to reveal client confidences for the purpose of preventing victims or helping victims of the client’s financial fraud. in our world, these are the 1.6(b)(2) and 1.6(b)(3) exceptions to the duty of confidentiality. the lawyer has that discretion because the client has been mis-using the lawyer’s assistance to commit fraud. if, however, the client came to the lawyer after committing the fraud and was seeking a legal defense, the lawyer would not have discretion to disclose.

as for the extortion part, the lawyer has crossed the line and is acting unethically and illegally. it is true that when a fight breaks out between lawyer and client over the fee, the lawyer may disclose client confidences as necessary to collect a fee, but that does not give the lawyer the right to use embarrassing information about the client as leverage to extort a higher fee.

in the real world, some crooks are smart enough to realize that you don’t want to stiff the lawyer on a fee, and i suppose that a lawyer could get that point across without being as crude (and as unethical!) as that lawyer did.

John Steele

I’ll describe the scenario in more detail:

Adam takes on a woman’s divorce case. She’s wealthy and her husband signed a pre-nup with regards to not getting anything if he cheated. Their sex life was floundering and so they hired another woman to have threesomes with them to spice things up. It works, but the husband seems to like the woman a little too much so they stop hiring her. But apparently they fell in love and have been seeing each other on the sly. The husband’s lawyer is going to argue that this wasn’t cheating since the wife initiated it, even though she didn’t authorize the alone time and wasn’t aware of it. Later, Adam sees the wife eating lunch with the hired woman, and giving her some money. He figures out that she actually was conning her husband the whole time, hiring the woman to tempt him into cheating so that he wouldn’t get any money in the future divorce. Adam tells her he’s quitting her case, and he’s billing her $15k for the two days work. And that if she thinks that’s too steep, she should know that failure to pay is an exception to lawyer-client privilege.

I can’t see this personally as anything other than extortion. And he’s considered the nice guy lawyer.

Adam has done everything right until the claim that failure to pay is an exception. Persoanlly, I would not ask for the money in this situation as it would be very tricky and dicey, but if the work was done in furtherance of an honest and reasonable belief that the woman had a case and the fee is for nothing more, then I say he has a claim,

There are very very few reasons a lawyer can divulge information shared. The client-attorney relationship is handled slightly differently state to state, but in general if a person identifies them self as a client or potential client the attorney needs to correct them if there is no client relationship.

For example. In many places where attorney like services are offered by the government they are very clear on the contracts to say they are a customer and usually specifically say YOU ARE NOT A CLIENT. YOU ARE A CUSTOMER.

The reason is to prevent exactly the above mentioned behavior, and the client-attorney relationship does not even require a contract or official agreement that says they are representing the person. In most states it is assumed that if a lawyer is contacted for the purposes of representation that the party contacting them is doing so as for the purposes of being a client. So the relationship starts immediately… regardless of payments made.

Now there are times where a lawyer may share information. The most common is an overly exaggerated statement where crime is involved. Each state is different, but the average is that the crime needs to be really really serious and is going to hurt someone, and note the future tense. So if a client says they are a kleptomaniac and are going to steal everything between here and the courthouse on Friday the attorney is not allowed to reveal that information. On the flip side if the client says they are going to kill their neighbor on Friday AND there is reason to believe this is a valid threat against someone’s life.

In this scenario the lawyer is actually required by a code of ethics agreement to report that to the police. If the lawyer doesn’t report it they could be disbarred.

The other common reason a lawyer may reveal something that was discussed is if they attorney was stupid enough to work without payment up front, AND the information being revealed is directly related to recovering a debt owed to them.

For example your name, address, social security number, employer, etc. This would be information allowed to be turned over to a collection agency to get back money you owe. However, telling the DA that you committed the crime and the details on how you did the crime would NOT be allowed.
I AM NOT A LAWYER