Opinion No. 1992-1

(Inquiry No. 385 )

Compulsion of testimony by an attorneys before a Grand Jury investigating client.

When a lawyer has been ordered by a court to testify about matters of a confidential nature, the lawyer does not violate the Code by complying with the court’s order.

Code Provisions:
EC 4-1
EC 4-4
EC 7-22
DR 1-102 (A) (5)
DR 4-101 (B)
DR 4-101 (C)
DR 7-102
DR 7-10-2 (A) (3)

Described Facts:
Inquiring counsel represents a co-executor of an estate. A dispute arose before the Surrogate regarding alleged acts of the decedent’s widow. In connection therewith, the non-client coexecutor procured an affidavit from a third party which supported some of his allegations. The client then procured an affidavit from the same third party which stated that the third party lied previously and had been paid for his previous affidavit. Client, represented by counsel other than inquiring counsel, testified before a Grand Jury concerning these events. The Assistant District Attorney(ADA) now wants inquiring counsel to testify about the preparation and execution of the affidavit which was presented to the Surrogate in opposition to a motion in the estate matter. Asserting the attorney-client privilege, inquiring counsel informed the ADA that he could not testify about his client’s actions. The ADA responded that the client had already testifiec to the facts and therefore has waived the privilege; the client, however, insists that he did not and does not waive the attorney-client privilege. Counsel representing the client in his appearance before the Grand Jury confirms this assertion. Inquiring counsel has been subpoenaed to appear before the Grand Jury and the Assistant District Attorney has stated that he intends to obtain a ruling from an appropriate court before placing inquiring counsel before the Grand Jury.

1. If the court rules that the attorney-client privilege has been waived by the client, must inquiring counsel testify before the Grand Jury?

2. Must inquiring counsel seek further review of the court’s order before he may testify before the Grand Jury?

A lawyer may not disclose infomation in contravention of the attorney-client privilege or reveal confidences unless the lawyer is ordered by a court to make such disclosure or to reveal confidences or secrets in accordance with such order. Where the court order is subject to further review and a good faith appeal of the court’s order can be maintained, the lawyer need not comply with the court’s order pending the exhaustion of such good faith appeal provided an appropriate stay of the enforcement of the court order is obtained.

A lawyer must assert the attorney-client privilege when called upon to disclose information protected by the evidentiary privilege. EC 4-4. The same ethical obligation exists where the lawyer is in doubt, but has a good faith belief that the testimony he is requested to give may be protected from disclosure by the privilege. State #528 (19811).

DR 4-101 (B) mandates that, except as provided under DR 4-101 (C), a lawyer shall not reveal a confidence or secret of a client. Under DR 4-101 (C) (2) a lawyer may reveal confidences or secrets of his client where permitted under the Disciplinary Rules or required by law or court order. Thus, once a court of competent jurisdiction has ruled that the attorney-client privilege does not apply, the lawyer does not subject himself to discipline by obeying the court’s order to testify.

Moreover, under DR 7-102 (A) (3), “a lawyer shall not … knowingly fail to disclose that which the lawyer is required by law to reveal”. It would follow, then, that when a court has ordered a lawyer to disclose client confidences, the lawyer is obligated to abide,by that order. Neither DR 7-l02(A) (3) nor DR 4-101 (C) (2) differentiate, however, between court orders which are subject to further review and those which are not. While a lawyer should not be required by a court to comply with an order for which a good faith appeal may be maintained and which appeal may result in a modification or reversal of that order until the client has had the opportunity to take the appeal, unless a proper stay of such order is obtained pending an appeal, the lawyer should comply with the order of the court. See generally State #528, supra. Until all good faith opportunities for review of an order directing a lawyer to reveal secrets or confidences have been exhausted or waived, testimony by the lawyer may unnecessarily and irreparably violate the confidence of his client which the code strives to keep intact. see EC 4-1.

With these principles in mind, we are of the opinion that where further review is legitimately available, DR, 4-1O1 (C) (2) requires a lawyer to request a stay pending exhaustion of the judicial mechanisms available to the client before the lawyer reveals a confidence or secret of the client. “Respect for judicial rulings is essential to the proper administration of justice; however, a litigant or his lawyer may, in good faith and within the framework of the law, take steps to test the correctness of a ruling of a tribunal”. EC 7-22. The latter portion of EC 7-22. The later portion of EC 7-22 is permissive not mandatory; thus, if a court of competent jurisdiction has ruled that certain information is not protected by the attorney-client privilege and orders the lawyer to testify as to that information, even if such order is subject to further good faith judicial review, the lawyer is not required to pursue such review to conclusion before he may disclose the information, although he may not give testimony if the client has obtained a proper stay of such order. This is particularly true where, as here, the client has independent counsel available to prosecute any review deemed advisable. The subpoenaed attorney is not obligated to prosecute the appeal, nor is he or she required to disobey the court order by refusing to testify pending review. Willful contempt of court is itself a violation of the Code. DR 1-102(A)(5); DR 7-102. The lawyer’s ethical obligation is satisfied by initially seeking a ruling on whether the testimony sought must be given.

Accordingly, Inquiry No. 1 is answered in the affirmative and Inquiry No. 2 is answered in the negative.

[Approved by the Executive Subcommittee on 12/10/91; Approved by the Full Committee on 1/15/92]