There are times when a lawyer is protected from his own speech and there are times when he is not. A recent decision out of the New Jersey Superior Court highlights the distinction.

In McGuiness v. Barnes, NJ SuperCourt Div, No. UNN-1710-93, 11/16/94, released 8/6/96, the plaintiff sued his lawyer for failing to file a timely medical malpractice action on his behalf. The complaint also charged that the lawyer failed to obtain medical records and failed to retain a medical expert to support the case.

Being the fine citizen that he was, the lawyer spoke at two New Jersey continuing legal education seminars at which he commented upon the importance of obtaining medical records and procuring expert medical testimony. Apparently, he was oblivious to or unconcerned with the possibility that his own statements might be used against him in the action for legal malpractice.

When he subsequently learned that McGuiness intended to use those statements for impeachment and on cross-examination of the defense legal expert, he objected. Among other things, he argued that the statements should be privileged from use at trial pursuant to public policy. In other words, academic speech and thought would be chilled if lawyers were not free to speak their minds at seminars and other educational gatherings.

The court recognized that there might be some reluctance on the part of lawyers to speak openly if their own words might be used against them; however, it concluded that the adverse impact on academia would be slight, particularly when balanced against the public's interest in full disclosure and the truth. Accordingly, the court refused to recognize a privilege that would protect speech at legal seminars.

Should the defendant lawyer in McGuiness have been surprised by the court's ruling? I do not believe so. His argument lacked the one ingredient upon which such privileges and immunities are usually predicated: a genuine need to protect the client's legal interests. A quick review of the most common protections proves the point.

Take, for example, the attorney-client privilege, which, perhaps more than any other rule, insulates a lawyer from liability for what he or she says. While the privilege ultimately protects the lawyer, its real purpose is to insure quality legal representation of the client.

Likewise, lawyers enjoy an absolute privilege to publish defamatory matter during judicial proceedings in which they participate, provided the defamatory statements are related to the proceedings. Again, the privilege protects the lawyer from liability; but its true purpose is to insure that the client receives courageous, zealous representation.

Lawyers also can be cloaked with judicial immunity and prosecutorial immunity. They have a privilege to advise that often insulates them from liability for interference with contract and other such matters. But these privileges and immunities are granted because they are deemed necessary to protect the legal interests of the lawyer's client.

Lawyers have become accustomed to protected speech - perhaps overly accustomed. Not all speech is protected.

Perhaps a good rule of thumb is that the lawyer ordinarily should not expect any relief from his or her own statements unless that relief protects some fundamental interest of the client. If the privilege or immunity asserted would operate to hinder or defeat a legal right of the client, most likely it will not be allowed.

The major exception that comes to mind is judgmental immunity, which defeats many actions for legal malpractice, but which is necessary in the greater scheme of things to protect the American adversary system of justice.

Just remember: When it comes to the interests of your own client, what you say probably can and will be used against you. Do not expect the court to protect you from your own words.

If my advice in this column ever seems a little watered down ... well, what can I say? I, for one, do not want to be held to any absolute standard when we all know there are exceptions to every rule.

This publication has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.