BAR ASSOCIATION OF NASSAU COUNTY

COMMITTEE ON PROFESSIONAL ETHICS

 

Opinion 2006-6

(Inquiry 756)

 

 

 

Topic:

 

            Preservation of confidence and secrets of client – attorney subpoenaed to testify against former client in civil litigation.

 

Digest:

 

            An attorney can not volunteer information gained in the professional relationship where a former client has requested that it be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the former client.

 

            An attorney subpoenaed to testify at an examination before trial regarding the demeanor of a former client in a deposition in an unrelated law suit and who is now claiming a disability existed prior to the engagement in said  suit, should inform the lawyer subpoenaing the attorney that the attorney is ethically prohibited from testifying at such pre-trial examination about the former client and if required to go forward by said lawyer, should move to quash the subpoena or decline to answer questions at such deposition unless directed to do so by Court order.

 

Code Provisions:

 

            DR 4-101 (A)

            DR 4-101(B)

            DR 4-101(C)

            DR 5-108(A)(2)

EC 4-4

            EC 4-5

            EC 4-6

 

Facts:

 

            About five years ago an attorney represented a client who was a defendant in a deposition in an auto liability case which was subsequently settled.

 

            Recently, the attorney was contacted by a lawyer who represented a defendant in a labor law case wherein, the attorney was told, the former client had suffered extremely severe injuries in the labor law case two years before the deposition in the automobile case for which the attorney represented said client and it is now claimed his IQ was reduced to fifty (50).  The automobile case is settled.

 

            The lawyer in the labor case now seeks to contravene the severity of the claimed injuries in the labor law suit through the pre-trial testimony of the attorney, that the former client of said attorney did not in any way appear afflicted during his deposition in the automobile case.

 

Inquiry:

 

            May an attorney testify as to the attorney’s observations of the former client during said client’s prior deposition as well as to the former client’s ability to answer questions posed in his prior auto liability case?

 

Analysis:

 

DR 5-108(A)(2) and DR 4-101 provide the pertinent analysis for this inquiry.

 

DR 5-108(A)(2) concerns an attorney’s potential conflict of interest when dealing with a former client’s confidences or secrets.  DR 5-108(A)(2) provides in pertinent part:

 

                        …a lawyer who has represented a client in a matter shall not,

                        without the consent of the former client, after full disclosure,

                        use any confidences or secrets of the former client...except

when the secret has become generally known.

 

Canon 4 of the Code of Professional Responsibility is implicated in this inquiry which concerns the duty of confidentiality, and together with the duty of loyalty, is the most important duty in the Code.  Indeed, as noted in Simon’s New York Code of Professional Responsibility Annotated, 2005 edition, p. 464: 

 

                        Without a duty of confidentiality, establishing and maintaining

                        a relationship of trust and “confidence” with an attorney would

                        be difficult or impossible, and many people would never seek

                        legal advice, or would conceal important facts from their

                        attorneys when they did seek advice.  That would fundamentally

                        alter our entire system of justice and its emphasis on individual

                        rights.

 

            DR 4-101 deals with the preservation of the Confidences and Secrets of                                                                                                                            clients and it protects all factual information “gained in the professional relationship” either as a “confidence” or as a “secret”.   In pertinent part, it provides:

 

                        A. “Confidence” refers to information protected by the

                        attorney-client privilege under applicable law, and

                        “secret” refers to other information gained in the

                        professional relationship that the client has requested

                        be held inviolate or the disclosure of which would be

                        embarrassing or would be likely to be detrimental to

                        the client.

 

                        B.  Except where permitted under DR 4-101(C), a lawyer

                        shall not knowingly:

 

                                    l.  Reveal a confidence or secret of a client.

                                    2.  Use a confidence or secret of a client to

                                    the disadvantage of the client.

                                    3.  Use a confidence or secret of a client for

                                    the advantage of the lawyer or of a third

                                    party, unless the client consents after full

                                    disclosure.

 

                        C.  A lawyer may reveal:

 

                                    ***

 

2.      Confidences or secrets when permitted under Disciplinary

Rules or required by law or court order.

                                   

***

 

           

Under the above described facts, the demeanor of the former client during that client’s deposition in the auto liability case is information gained by the inquiring attorney during the professional representation of said client.  Accordingly, it qualifies as a “secret” of the former client since disclosure of the information would, at least, be “embarrassing” to the former client or disclosure would be “likely to be detrimental” to the former client in the current labor law case and there has been no consent indicated on the part of the former client that the attorney make such disclosure.  See Nassau County Bar Op.03-1 (2003) where the Committee declared that: “all information gained in the professional relationship is a ‘secret’ if its disclosure would embarrass or harm the client and may , therefore, not be disclosed absent an exception to DR4-101.”  See also EC 4-5.

 

            Indeed, as provided in EC 4-4, “the ethical obligation of a lawyer to guard the confidences and secrets of the client...exists without regard to the nature or source of information or the fact that others share the knowledge....”

 

             Moreover, as provided in EC4-6, the “obligation to protect the confidences and secrets of a client continues after the termination of employment.....”

 

            Accordingly, the inquiring attorney should inform the lawyer who has subpoenaed him that he is precluded by the Code from testifying in the labor law suit and that he will not voluntarily testify.  Further, if the lawyer insists, then the inquiring attorney has the obligation to assert and protect the client’s secret by declining to testify and moving to quash the subpoena.  However, if a Court order is obtained requiring the attorney to testify, the attorney may do so to the extent directed by such Court order.  DR 4-101(C)(2).  Finally, considering that the deposition took place in the presence of a specific, closed group of people, it is the Committee’s opinion that the former client’s secret had not become generally known.  Therefore, the exception found in DR 5-108(2) which allows for an attorney to reveal a confidence or secret when it becomes generally known is inapplicable.  

 

Conclusion:

 

            An attorney may not testify as to the attorney’s observations of the former client during said client’s prior deposition as well as to the former client’s ability to answer questions posed in said deposition unless directed to do so by Court order.


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