Ethics

Stephen Gillers posed an interesting question a few weeks ago.  He wondered whether a lawyer can disclose confidential information in order to protect herself against a former client?s unfair or inaccurate descriptions about the lawyer in the media. 

The issue came to mind as I read this story about Dimitrios Biller, the former in-house lawyer for Toyota who is suing the company for wrongful termination and accusing the company of burying discoverable information.   Biller?s lawyers recently withdrew from representing him, citing a breakdown in the attorney-client relationship.  Biller explained to the press that his lawyers refused to try the case and that they were insisting on settling it.  Biller?s allegations by themselves tend to make the lawyers look bad, but I suspect that there is more to the story.   

So let?s re-pose Stephen?s question in the context of an actual case: should Biller?s lawyers be permitted to disclose information about the reason for their withdrawal if Biller?s explanation is inaccurate or incomplete?

Stephen?s post suggested that there is some ambiguity in the Model Rules on this particular point, though the comments to the post suggest that the answer is probably ?no.?  A comment to Stephen?s earlier post, however, suggested that the answer might be yes under the Restatement (Third) of the Law Governing Lawyers §64, cmt (e).  It states that "[w]hen a client has made a public charge of wrongdoing, a lawyer is warranted in making a proportionate and restrained public response."

I disagree with the Restatement on this point.  I believe that the self-protection exception should apply only in the context of a proceeding, not in the context of an adverse media portrayal.  What do you think?  Is the Restatement position a desirable one?