Ethics

While researching confidentiality in the Rules and the Code for another reason, I came upon this textual issue.

As we know, the text of the self-defense exception in the Rules is and was meant to be broader than the text in the Code. For example, it allows revelation of client confidences not only for defensive purposes but also to establish a "claim." So an in-house lawyer can sometimes use confidential information to prove discrimination by an employer  or to prove retaliatory discharge. 

The Rules also allow revelation of confidences "to respond to allegations in any proceeding concerning the lawyer's representation of the client." It does not say the lawyer has to be a party or counsel in the proceeding.

But the word "proceeding" is limiting.

What if the lawyer's work is attacked outside a tribunal, say in the press, by the (now former) client or others? Can the lawyer defend with confidential information? It would seem not as the text reads.

But the Code language, though it focuses on defense only, not claims (except for claims for fees), allows a lawyer to reveal confidences "to defend himself...against an accusation of wrongdoing." It is not limited to a "proceeding," unless we read the word "accusation" to mean a "formal accusation" or something like that, which is not self-evident.

So what's the answer? And what should be the answer? I can certainly imagine situations where my reputation can be more seriously harmed in a news story than by what someone says in court in passing.