Three weeks ago, I criticized Herbert J. Miller Jr. for the disclosures that, according to The New York Times, he made during a recent forum at the Duquesne University School of Law ["Grave Concerns," Jan. 3, 2000]. By that newspaper's account, Miller had repeated publicly what his client Richard Nixon had said to him regarding President Gerald Ford's proposal to pardon Nixon, but Miller had refused to disclose additional communications from Nixon relating to any acknowledgment of guilt.

I suggested that those selective disclosures were likely a violation of the attorney-client privilege and, as a consequence, perhaps even a violation of the Code of Professional Responsibility. In response, three of Miller's law partners claimed that I had made reckless accusations ["No Tales Told," Jan. 17, 2000]. They insisted that research would have shown: (1) that the information disclosed by Miller was public and therefore not protected by the attorney-client privilege, and (2) that these disclosures were not "embarrassing" or "detrimental" to Nixon and, therefore, not a violation of the Code of Professional Responsibility. Both of these criticisms are unwarranted.

"Detrimental" disclosure is not the standard for breach of the attorney-client privilege. The simple rule is that after the client's death, any disclosures of confidential client communications, regardless of their favorable or unfavorable nature, are a violation of the privilege unless the client gave express authorization.

This does not mean, however, that "If you can't say something bad about someone, don't say anything at all." Instead, it requires an even more restrictive rule of conduct: If you have to say something about a former client, don't say anything that reveals what he confidentially communicated to you. While this may inhibit the lawyer's freedom of expression, it is a trade-off that is made for the license to practice law and does not implicate any cognizable First Amendment right.

The Miller defenders' most persuasive argument that their partner did not violate his client's confidences is the claim that Nixon had already disclosed the same conversations in a 1977 interview with David Frost and in Nixon's own book In the Arena. They quote from my treatise where I acknowledge that if the client does not preserve the confidentiality of his own communications, the privilege is destroyed. And if the communications in question were voluntarily disclosed by Nixon, they are absolutely correct: Miller did not violate his client's confidences.

I would note, however, that their response repeatedly refers to allegedly nonconfidential "information" that Miller disclosed ("information the client requested that he hold 'inviolate,' " "information that Nixon had already revealed," "information [Miller] discussed," "information that his client has placed in the public record," and "public record information"). It quotes various remarks that Nixon apparently made during the Frost interview. In each of these remarks, Nixon stated some of the same facts that Miller has now reportedly disclosed were communicated to him by Nixon.

Yet for privilege purposes, facts are not the same as communications that contain those facts. The privilege protects communications, not information, conveyed between attorney and client. By itself, Nixon's public statement that to accept a pardon "was a terribly difficult decision for me, almost as difficult as resigning," does not reveal whether he said the same things to his attorney. Thus, his attorney is still precluded from disclosing what Nixon actually said to him.

The confidential nature of a communication does not depend on the nature or source of the facts contained in it. Indeed, a confidential communication does not have to contain confidential facts at all. Therefore, anything that Miller revealed that had not previously been explicitly revealed by Nixon as having been communicated to his attorney would be a violation of Nixon's attorney-client privilege. This is why it is unwise for lawyers to relate a client's prior communica-tions without specific authorization to reveal precisely those communications.

I must confess that I have not listened to the tapes of the Frost interview. I also have not read all of Nixon's correspondence in which he might have made similar disclosures to other third parties. Whether I had "any obligation - legal, ethical, or moral - to first research the public record" in this regard is an interesting question, yet its answer returns us to the conduct of Herbert Miller.

Neither the newspaper account nor the response by Miller's partners indicates that he ever attempted to explain at the Duquesne forum why his disclosures were not a violation of the client's confidences. Whenever an attorney makes such disclosures, it raises questions of apparent impropriety. Today more than ever, with the public image of lawyers being so low, lawyers must strive to be like Caesar's wife - above suspicion. In such situation, they should make every effort to explain their conduct to the audience.

The claim that I should have researched the entire public record to ascertain whether a prior disclosure had been made by Nixon is also inconsistent with Miller's own assertion at the forum. In response to a question on why he had chosen to make his remarks at that time, the Associated Press reported that Miller said that he "thought it was probably a good idea to have as part of the historical record why we agreed to the pardon." If his disclosures served to complete the historical record, why is it not reasonable for listeners to conclude that the facts and communications he was disclosing had not previously been made part of the record by his client?

Whether my challenge to Miller's disclosures was inappropriate or not turns on a number of facts that will likely never be known because the very privilege we are discussing precludes a full examination of the facts. But my suggestion that Miller may have acted inappropriately was neither "obviously baseless," "absurd legally," nor "highly inappropriate."