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Many lawyers have followed the frightening turn of events in Qualcomm's patent case against Broadcom.

In that highly publicized case, several of Qualcomm's lawyers allegedly failed to produce many thousands of relevant e-mails.

In January, a magistrate judge issued a lengthy and extremely harsh opinion criticizing Qualcomm's lawyers for these lapses. (Qualcomm Inc. v. Broadcom Corp., No. 05CV1958-B (BLM) (S.D. Cal. 2008).

But most lawyers have overlooked a sideshow in the litigation that implicates a critical but often counter-intuitive principle – that lawyers are allowed to disclose client confidences when defending themselves from a non-client's attacks.

The magistrate judge's opinion noted that Qualcomm's assertion of its attorney-client privilege prevented its lawyers from disclosing client confidences in defending against Broadcom's allegations of discovery abuse.

However, on March 5, a U.S. District Court judge vacated the magistrate's earlier opinion, citing the "self-defense exception to the attorney-client privilege of Qualcomm." (Qualcomm Inc. v. Broadcom Corp., No. 05CV1958-RMB (BLM) (S.D. Cal. 2008).

The court pointed to four affidavits filed by Qualcomm employees that were "exonerative of Qualcomm and critical of the services and advice of their retained counsel." It explained that "[t]his introduction of accusatory adversity between Qualcomm" and its lawyers "changes the factual basis which supported the court's earlier order denying the self-defense exception."

The district judge remanded the case for further proceedings, during which Qualcomm's lawyers will be able to disclose confidences even over their client's objection.

Self defense expanding

At its core, the self-defense exception rests on common sense and fairness.

When a client sues his lawyer or otherwise attacks his or her competence, lawyers must be able to defend themselves. As the aggressor in those situations, the client should not be able to complain when the lawyer discloses confidences.

However, whether the self-defense exception applies seems far less clear when lawyers face attacks from third parties.

Courts began to develop this expanded self-defense exception over thirty years ago.

In a 1974 2nd Circuit case, a law firm associate believed that his firm was not properly insisting that its client make a full and complete disclosure of public offering documents. The associate left the firm, but was nevertheless named as a defendant in several lawsuits based on the offering documents.

The court held that the lawyer could disclose his role in the offering documents' preparation – reversing a district court's finding that the lawyer had violated his ethical duty of confidentiality. (Meyerhofer v. Empire Fire & Marine Insurance Co. (497 F.2d 1190).)

In two later cases, U.S. District Courts in New York expanded the self-defense exception even further, applying the exception in the privilege context and before the lawyer had been named as a defendant in a proceeding.

The ethics rules generally parallel this case law.

ABA Model Rule 1.6(b)(5) allows a lawyer to reveal client information "to the extent the lawyer reasonably believes necessary … to respond to allegations in any proceeding concerning the lawyer's representation of the client."

A comment attached to the rule makes it clear that the self-defense exception applies even if the allegations against the lawyer come from a third party. The comment also explicitly indicates that the exception "does not require the lawyer to await the commencement of an action or proceeding that charges such complicity." The Restatement (Third) of the Law Governing Lawyers takes the same basic approach.

Given this history, it is clear that the District Court's decision in Qualcomm stands in the mainstream of the self-defense exception jurisprudence.

In fact, the court could have applied the exception even before Qualcomm's employees filed "accusatory" affidavits "critical of the services and advice of their retained counsel." Broadcom's allegations of misconduct by the Qualcomm lawyers almost surely would have satisfied the self-defense exception. But the court may have preferred to base its ruling on the client's attack on its own lawyers – the original setting from which the self-defense exception developed.

Tom Spahn practices as a commercial litigator at McGuireWoods in McLean, Va. He regularly advises a number of Fortune 500 companies on issues involving ethics, conflicts of interest, the attorney-client privilege and corporate investigations.