Attorney “Whistleblowing” Does Not Excuse Former-Client Confidentiality: Sunshine Law, Rule 4-1.13, and the First Amendment Are Not Safe Harbors

1. Introduction

This attorney-discipline proceeding centers on how far a lawyer—particularly a former government lawyer—may go in “speaking out” after termination from public employment. Ryan Christopher McCarty, a Missouri lawyer admitted in 2010 with no prior discipline, served as associate general counsel to the Kansas City Police Department (“KCPD”) beginning in June 2022. After a contentious relationship with the department’s general counsel and internal conflict about workplace conditions and certain departmental practices, KCPD terminated McCarty on December 7, 2022.

Immediately after termination, McCarty contacted U.S. Department of Justice investigators and then circulated a mass email to a large group of public officials, lawyers, and media (143 addresses), attaching 372 pages of internal KCPD emails and memoranda. The attachments included legal advice, investigative and disciplinary information, and McCarty’s internal notes, all obtained during his representation of KCPD.

The Office of Chief Disciplinary Counsel (“OCDC”) charged McCarty with violating Rules 4-1.9(c)(1) and 4-1.9(c)(2) (former-client confidentiality and non-use of representation-related information to a former client’s disadvantage). The Disciplinary Hearing Panel found violations but recommended a reprimand; OCDC sought a one-year-minimum suspension. The Missouri Supreme Court imposed the harsher sanction.

Key issues: (i) whether McCarty’s disclosures fell within any exception permitting disclosure; (ii) whether organizational-reporting duties under Rule 4-1.13(b) could justify “reporting” to the public after termination; (iii) whether “other law” (Sunshine Law; constitutional disclosure principles) permitted disclosure under Rule 4-1.6(b)(4); and (iv) whether the First Amendment or Missouri’s whistleblower statute insulated McCarty from attorney discipline.

2. Summary of the Opinion

The Court held McCarty violated Rules 4-1.9(c)(1) and 4-1.9(c)(2) by knowingly revealing and using information relating to his former client’s representation—without informed consent and not otherwise permitted—through disclosures to DOJ investigators and a broad public distribution list.

The Court rejected three principal defenses:

• Rule 4-1.13(b) (organizational reporting): inapplicable because McCarty was no longer employed or retained when he disclosed; and, even if applicable, it does not authorize public dissemination.
• Rule 4-1.6(b)(4) / “comply with other law”: neither Missouri’s Sunshine Law nor constitutional Brady/Giglio obligations compelled or permitted McCarty’s disclosures in the manner made.
• First Amendment and Missouri whistleblower statute: neither prevents the Missouri Supreme Court from enforcing professional confidentiality duties and imposing discipline.

Applying the ABA Standards, the Court concluded suspension (not reprimand) was presumptively appropriate because McCarty acted knowingly. Considering aggravating factors (pattern of misconduct; refusal to acknowledge wrongfulness; substantial experience) and mitigating factors (no prior discipline; cooperation; character evidence), the Court imposed an indefinite suspension with a one-year minimum before reinstatement eligibility.

3. Analysis

3.1. Precedents Cited

The Opinion grounds its approach in Missouri’s well-established discipline framework and uses U.S. Supreme Court speech cases to rebut McCarty’s constitutional defenses. Each cited authority performs a specific role:

• In re Agron, 701 S.W.3d 623 (Mo. banc 2024): Supplies the discipline standard of review and institutional premise—Missouri’s “inherent authority” to regulate law practice; proof by a preponderance; de novo review; and the DHP’s recommendations are advisory. This framing is crucial because it positions the case as professional regulation (not employment retaliation), foreshadowing rejection of whistleblower and First Amendment defenses.
• In re Neill, 681 S.W.3d 194 (Mo. banc 2024): Provides the core purpose of discipline: protecting the public and preserving the integrity of the profession rather than punishment. The Court uses this rationale to explain why public-interest motives cannot override confidentiality—because the duty serves systemic ends (client candor, effective legal advice) essential to public governance.
• In re Belz, 258 S.W.3d 38 (Mo. banc 2008): Supports the Court’s step of calibrating sanction severity through mitigating and aggravating factors after identifying the presumptive discipline under ABA Standards.
• In re Eisenstein, 485 S.W.3d 759 (Mo. banc 2016): Reinforces that sanction must be assessed in light of misconduct that bears on fitness “to protect the public and maintain the integrity of the legal profession.” The Court cites this principle to emphasize why breaching government-client confidentiality can have broad institutional consequences.
• Pickering v. Board of Education of Township High School District 205, Will County, Illinois, 391 U.S. 563 (1968): Introduced by McCarty to argue that a public employee’s speech on matters of public concern is protected. The Court acknowledges the general balancing test but treats it as a poor fit where the “discipline” is not by the employer but by the Court’s lawyer-regulation authority.
• Garcetti v. Ceballos, 547 U.S. 410 (2006): Supplies the limiting principle: speech made “pursuant to official duties” is not citizen speech protected from employer discipline. The Court analogizes McCarty’s disclosures to duty-derived speech because the information “was obtained solely through his position,” undercutting his attempt to recharacterize it as purely citizen commentary.
• Virginia v. Black, 538 U.S. 343 (2003): Used for the proposition that First Amendment protections are not absolute. The Court leverages this to explain why professional speech restraints (like confidentiality) can constitutionally cabin a lawyer’s ability to publicly disclose representation-related information.
• Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972): McCarty invoked these to claim constitutional imperatives required exposure of supposed disclosure failures. The Court distinguishes them sharply: they regulate prosecution disclosure obligations in criminal cases, and McCarty was not making disclosures in a criminal prosecution nor disclosing case-specific exculpatory or impeachment evidence as required by those decisions.

3.2. Legal Reasoning

A. The core rule: confidentiality is broader than privilege and continues after representation

The Court begins by anchoring former-client confidentiality (Rule 4-1.9) in the broader confidentiality obligation (Rule 4-1.6). Two doctrinal moves are central:

• Scope: Confidentiality covers “all information relating to the representation, whatever its source” (not merely privileged attorney-client communications).
• Duration: The duty survives termination; Rule 4-1.9(c) continues to prohibit both (i) revealing and (ii) using representation-related information to the former client’s disadvantage (unless an exception applies or the information is “generally known”).

B. Government-lawyer status does not create a confidentiality carve-out

The Court explicitly forecloses any “public client” exception by citing Rule 4-1.11(a)(1), which makes former government lawyers subject to Rule 4-1.9(c) absent express legal permission. This is an important institutional statement: representation of a public entity does not reduce the lawyer’s confidentiality obligation merely because the public is interested in government operations.

C. Application to McCarty’s conduct: revealing + disadvantaging use

The Court’s factual application is straightforward:

• Revealing information: McCarty attached internal emails, memoranda, legal advice, employee discipline information, and his own internal notes—materials he obtained “by virtue of his position representing KCPD”—and he did so without informed consent.
• Using to disadvantage: He distributed the materials to support allegations of “misbehavior and wrongdoing,” to undermine confidence, and to “incriminate KCPD” in the DOJ investigation—constituting use to the former client’s disadvantage under Rule 4-1.9(c)(1).
• Not “generally known”: The Court treats his mass release as proof the information was not generally known; his stated purpose was to reveal what insiders knew.

D. Why the asserted defenses failed

1) Rule 4-1.13(b) (organizational reporting) cannot be repurposed as public disclosure after termination

McCarty argued he was “reporting” to the “highest authority” of the organization—ultimately the public. The Court rejects this on two levels:

• Temporal limit: Rule 4-1.13 applies to a lawyer “employed or retained” by an organization; McCarty disclosed after he had been terminated.
• Substantive mismatch: Even if it applied, the rule directs measures that “minimize disruption” and minimize risk of disclosure outside the organization; McCarty’s mass email campaign pursued disruption and broad dissemination. The Court also clarifies that the DOJ is not “higher authority in the organization,” and “the public” is not the organization’s highest authority “as determined by applicable law,” noting KCPD is managed by the Board of Police Commissioners under section 84.460.

2) Rule 4-1.6(b)(4) (“comply with other law”) requires compulsion, not a lawyer’s unilateral decision to publish

The Court draws a sharp line between (a) disclosures required by “other law” or court order and (b) discretionary whistleblowing. It holds McCarty failed to identify any law that required him to distribute confidential information to outsiders in the way he did.

• Whistleblowing generally: Valued in civic life but not an enumerated exception within Rule 4-1.6; thus it cannot override confidentiality absent an applicable rule-based exception.
• Sunshine Law (sections 610.023, 610.024): The Sunshine Law compels disclosure by the government entity upon request, subject to exemptions and determinations. Because no request compelled McCarty’s disclosures, he was not “complying with other law.” The Court also emphasizes a practical sequencing rule: until a proper request is received and a determination is made that records are non-exempt, the information remains confidential for ethics purposes.
• Brady/Giglio and constitutional amendments: Brady and Giglio obligations pertain to criminal prosecutions and require prosecutors to disclose certain material in that context. McCarty was not acting as a prosecutor in a criminal case, and his mass disclosure was not the constitutionally prescribed mechanism for Brady/Giglio compliance.

3) The First Amendment and section 105.055 do not constrain the Supreme Court of Missouri’s disciplinary authority

The Court rejects McCarty’s attempt to transpose public-employee free-speech protections into the attorney-discipline context:

• First Amendment: Even assuming the Pickering framework could apply, Garcetti undermines McCarty because the disclosed information “owes its existence” to his official duties. Separately, the Court stresses that lawyers accept professional speech constraints via their licensing oath (Rule 8.15(b)) and that those constraints include confidentiality duties.
• Missouri whistleblower statute (section 105.055): The statute restricts retaliatory action by a public employer/supervisor; it does not immunize a lawyer from discipline imposed by the Court for ethical violations.

3.3. Impact

The Opinion’s likely influence is significant in three practical domains:

• Government-law practice: It reinforces that public-entity clients are entitled to the same confidentiality as private clients, and that post-employment disclosures are disciplined under the same former-client rules. The Court’s emphasis on the public’s interest in government entities receiving candid legal advice signals heightened sensitivity to the chilling effect of lawyer “leaks.”
• “Public records” arguments: The Court effectively rejects the idea that “potentially disclosable under Sunshine” equals “not confidential.” For future cases, lawyers cannot bypass the statutory request-and-determination process by self-publishing materials and claiming they were public anyway.
• Speech defenses in discipline cases: By grounding the limitation in professional oath and ethical structure (rather than employer retaliation), the Opinion narrows the usefulness of First Amendment defenses when the misconduct is disclosure of client information.

In sanction terms, the Court’s use of ABA Standard 4.22 underscores that knowing disclosure of client information—without a lawful exception—will presumptively yield suspension, even where the lawyer claims public-spirited motives and presents substantial character mitigation.

4. Complex Concepts Simplified

• “Information relating to the representation”: A very broad category. It includes not just privileged communications but also emails, internal memos, notes, investigative materials, and even facts learned from third parties if connected to the legal work.
• Attorney-client privilege vs. confidentiality: Privilege is an evidence rule (what can be compelled in court). Confidentiality is an ethics duty (what a lawyer may disclose anywhere). Confidentiality is broader and applies in more situations.
• “Informed consent”: The client must agree to disclosure with adequate information about what will be disclosed and the consequences—not merely a lawyer’s belief that disclosure is for the “greater good.”
• “Generally known” information: Not simply “someone could obtain it” or “it might be public records.” The Court treated McCarty’s purpose—to reveal insider information—as evidence it was not generally known.
• Rule 4-1.6(b)(4) (“comply with other law”): This exception is about situations where the law (or a court order) requires disclosure. It is not a blanket authorization to disclose whenever a lawyer believes disclosure would advance legal compliance by others.
• Rule 4-1.13 (organization as client): The “client” is the organization (here, KCPD), not the public, not individual employees, and not the lawyer’s personal view of the organization’s “constituents.”

5. Conclusion

In re: Ryan Christopher McCarty, Respondent. stands for a firm proposition: a lawyer’s former-client confidentiality duties apply with full force to former government lawyers, and neither whistleblower framing, Sunshine Law rhetoric, Brady/Giglio concerns, the First Amendment, nor Missouri’s whistleblower statute creates an ethics immunity for mass disclosure of representation-related materials.

The Court’s sanction analysis reinforces that knowing disclosure triggers presumptive suspension under ABA Standard 4.22, and that strong character evidence may mitigate but will not erase the systemic harm posed by breaching client trust—particularly for public entities that must be able to seek candid legal advice without fear of public dissemination.