McCarty v. OCDC: Whistle-Blowing Does Not Trump Attorney-Client Confidentiality for Former Government Lawyers

1. Introduction

In In re: Ryan Christopher McCarty, the Supreme Court of Missouri, sitting en banc, confronted the collision between a lawyer’s post-employment whistle-blowing and the enduring duty of confidentiality owed to a former client. Ryan Christopher McCarty, former Associate General Counsel for the Kansas City Police Department (KCPD), disseminated hundreds of pages of internal legal documents to federal investigators, elected officials, media outlets, and other “stakeholders” three days after being terminated. The Office of Chief Disciplinary Counsel (OCDC) charged him with violating Missouri Rules of Professional Conduct 4-1.9(c)(1) and 4-1.9(c)(2).

McCarty defended his disclosures on three principal grounds: (i) they were compelled by Rule 4-1.13(b) as internal reporting to the “highest authority” of his organizational client; (ii) they were permissible under Rule 4-1.6(b)(4) because other law (Sunshine Law, Brady/Giglio, constitutional provisions) allegedly required disclosure; and (iii) they were shielded by the First Amendment and Missouri’s public-employee whistle-blowing statute, §105.055 RSMo.

After a de novo review, the Court rejected every defense, found willful violations, and imposed an indefinite suspension with no leave to apply for reinstatement for one year. The opinion sets an important precedent on the narrowness of any whistle-blowing exception to attorney-client confidentiality—especially for former government lawyers—and clarifies the disciplinary standards applicable when such lawyers publish client secrets under the banner of public interest.

2. Summary of the Judgment

Findings: McCarty knowingly revealed and used client information to the disadvantage of KCPD, violating Rules 4-1.9(c)(1) & (2).
Rejected Defenses:
- Rule 4-1.13(b) required reporting only for current organizational lawyers and obligates minimization of external disclosure—neither condition met.
- Rule 4-1.6(b)(4) (“to comply with other law”) did not apply because no statute, Sunshine Law request, constitutional mandate, or court order compelled disclosure.
- First Amendment and whistle-blowing statute protect against employer retaliation, not against bar discipline; attorneys voluntarily curtail speech by taking the oath.
Discipline: Applying ABA Standards 4.22 & 9.2, the Court suspended McCarty indefinitely with no leave for reinstatement for one year, citing a pattern of misconduct, refusal to acknowledge wrongfulness, and substantial legal experience as aggravators, tempered by lack of prior discipline and favorable character evidence.

3. Analysis

3.1 Precedents Cited and Their Influence

Brady v. Maryland, 373 U.S. 83 (1963) & Giglio v. United States, 405 U.S. 150 (1972):
McCarty invoked these cases to justify disclosures. The Court distinguished them as obligations on prosecuting authorities within criminal litigation, not on an employment counsel outside any criminal case.
Pickering v. Board of Educ., 391 U.S. 563 (1968) & Garcetti v. Ceballos, 547 U.S. 410 (2006):
Cited for First-Amendment public-employee speech doctrine. The Court read Garcetti narrowly—speech derived from official duties is unprotected—and added that bar discipline flows from self-imposed professional obligations, beyond employer control.
Missouri authority on attorney regulation: In re Agron (2024), In re Neill (2024), and In re Eisenstein (2016) reaffirm the Court’s inherent disciplinary power and the focus on public protection.
ABA Standards for Imposing Lawyer Sanctions (1992): Provided the disciplinary framework; Standard 4.22 (knowing disclosure warrants suspension) was pivotal.

3.2 The Court’s Legal Reasoning

a) Duty of Confidentiality Persists Post-Representation.
Rule 4-1.9(c) extends Rule 4-1.6’s confidentiality beyond the life of the attorney-client relationship. The Court underscored comment 3: confidentiality “applies to all information relating to the representation, whatever its source.” By admitting that “most” attachments came from internal OGC emails, McCarty squarely implicated the rule.

b) Rule 4-1.13(b) Does Not Authorize Public Dumps.
That rule obliges a current organizational lawyer who detects internal wrongdoing to proceed “reasonably necessary in the best interest of the organization,” minimizing risk of external disclosure. McCarty was already fired; the public and DOJ are not the “highest authority that can act on behalf of the organization.” Therefore, the safe harbor never triggered.

c) “Comply With Other Law” Exception Is Narrow.
Rule 4-1.6(b)(4) is available only if disclosure is actually required by statute or court order. Sunshine Law requires disclosure only upon proper request; whistle-blowing statutes at most permit, not mandate, reporting; and constitutional discovery obligations attach to prosecutors in pending criminal cases. None applied.

d) Constitutional and Statutory Speech Protections Yield to Ethical Oath.
Attorneys voluntarily accept limits on speech by taking the oath under Rule 8.15(b). Bar discipline, emanating from the judiciary’s inherent authority, is distinct from employer discipline; therefore, First Amendment or §105.055 defenses fail.

3.3 Likely Impact of the Decision

Government Counsel Caution: Former (and current) public-sector lawyers must exhaust internal channels and secure informed consent or legal compulsion before external whistle-blowing. The opinion underscores that Rule 4-1.13(b) reporting is not carte blanche for public disclosure.
Narrowing of “Other Law” Exception: Clarifies that merely permissive statutes (Sunshine Law, whistle-blower acts) do not unlock Rule 4-1.6(b)(4). Future litigants must demonstrate an actual legal duty to disclose.
Free-Speech Boundaries for Lawyers: Reaffirms that professional ethics can constitutionally restrict attorney speech, even on matters of public concern, when client confidences are at stake.
Disciplinary Benchmark: Aligns Missouri with ABA Standard 4.22, signaling that knowing disclosure of client secrets—absent intent to benefit self—will ordinarily warrant at least a suspension.

4. Complex Concepts Simplified

Rule 4-1.6 (Duty of Confidentiality): Forbids lawyers from revealing any information related to a client’s representation unless the client consents, the disclosure is implicit in representation, or a listed exception applies.
Rule 4-1.9(c) (Duties to Former Clients): Extends confidentiality after the representation ends and bars using or revealing client information to the former client’s disadvantage.
Rule 4-1.13(b) (Reporting in Organizations): Requires a current organizational lawyer who discovers serious internal illegality to act in the entity’s best interest—normally by escalating the issue within the organization, while minimizing external disclosure.
“Knowingly” vs. “Negligently”: “Knowing” conduct is undertaken with awareness of the facts and the wrongdoing, whereas “negligent” conduct is inadvertent. Under ABA Standard 4.22, knowing disclosure calls for suspension.
Indefinite Suspension with No Leave for One Year: The lawyer is immediately suspended; after one year he may apply for reinstatement, but reinstatement is not guaranteed and requires proof of fitness.

5. Conclusion

The Missouri Supreme Court’s decision in In re McCarty emphatically re-asserts the primacy of the attorney-client confidentiality rule—even when a lawyer believes public disclosure will expose government misconduct. By ruling that neither whistle-blowing impulses, Sunshine Law aspirations, nor First Amendment protections override Rule 4-1.9, the Court protects the integrity of the attorney-client relationship for public entities and clarifies that the path for ethical dissent lies within narrowly prescribed channels. The case stands as a cautionary beacon for lawyers tempted to air client secrets for perceived public good: absent actual legal compulsion or client consent, the price may be the suspension of one’s law license—and, potentially, one’s professional reputation.