[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

Chapter 8
Confidentiality Exceptions: Lawyer Interests and Compliance
with Other Law
A. Seeking Advice, Self-Defense, and Compensation Disputes Model Rule
1.6(b)(4) and (5) RLGL §§ 64, 65, 83
When lawyers are accused of misconduct, utilitarians would argue that the need for
information to produce a just outcome allows lawyers the freedom to disclose the
information necessary to defend against the allegation. Lawyers also are justified in seeking
advice about their own conduct or in making an affirmative claim for fees, at least so long
as the client has violated a legal obligation that should be redressed. Deontologists would
defend the lawyer’s right to seek advice and to respond to an accusation on the grounds
that the lawyer deserves a chance to explain her conduct, especially when unjustly accused.
Similarly, the lawyer who has provided legal services to a client deserves to be paid for those
services because the client has promised to do so, and promises should be kept. In all of
these situations, the personal interest of the lawyer in using confidential information often
is corralled by protective orders or limitations on the permissible scope of disclosure.
Meyerhofer v. Empire Fire & Marine Insurance Co.
497 F.2d 1190 (2d Cir. 1974), cert. denied, 419 U.S. 998 (1974)
MOORE, Circuit Judge:
This is an appeal by . . . plaintiffs, and their counsel, from an order of the United States
District Court for the Southern District of New York . . . (a) dismissing without prejudice
plaintiffs’ action against defendants, (b) enjoining and disqualifying plaintiffs’ counsel,
Bernson, Hoeniger, Freitag & Abbey, and Stuart Charles Goldberg from acting as attorneys
for plaintiffs in this action or in any future action against defendant Empire Fire and
Marine Insurance Company (Empire) involving the same transactions, occurrences, events,
allegations, facts or issues, and (c) enjoining Bernson, Hoeniger, Freitag & Abbey and
Stuart Charles Goldberg from disclosing confidential information regarding Empire to
others. Intervenor Stuart Charles Goldberg also appeals from said order. . . .
Empire Fire and Marine Insurance Company on May 31, 1972, made a public offering
of 500,000 shares of its stock, pursuant to a registration statement filed with the Securities
and Exchange Commission (SEC) on March 28, 1972. The stock was offered at $16 a
share. Empire’s attorney on the issue was the firm of Sitomer, Sitomer & Porges. Stuart
Charles Goldberg was an attorney in the firm and had done some work on the issue.
Plaintiff Meyerhofer, on or about January 11, 1973, purchased 100 shares of Empire
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