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Year 2005 Ethics Opinions
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW
YORK
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
FORMAL OPINION 2005-03
VOLUNTARY ATTORNEY TESTIMONY
CONCERNING FORMER CLIENTS
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Topic: Lawyer as Witness; Duty of Confidentiality
Digest: There is no per se bar preventing a
lawyer from voluntarily testifying about a former client. However,
if the testimony would involve revelation of a "confidence" or "secret",
the attorney must conform to the limitations in DR 4-101. In particular,
if the testimony would disclose a confidence or a secret, the lawyer
should attempt to secure the former client’s consent before agreeing
to testify. If in the course of testifying, the lawyer is asked a question
for which the client’s consent has not been obtained, the lawyer
should assert any applicable objection, including privilege, where applicable,
that would enable the lawyer to avoid answering the question.
Code: DR 4-101; EC 4-6; EC 4-4; DR 5-108
Question
When, and under what circumstances, may an attorney volunteer testimony
concerning a former client?
Opinion
This Committee has been presented with the question of whether, and
under what circumstances, a lawyer may, consistent with the lawyer’s
obligations under the New York Code of Professional Responsibility (the “Code”),
voluntarily provide testimony about a former client. The attorney may
be presented with this often difficult question in any number of scenarios – whether
asked to appear without compulsion of subpoena or to provide an affidavit
for a court filing. A lawyer might be asked for testimony in competency
proceedings where the former client’s mental capacity is at issue;
matrimonial actions where the lawyer represented one or both of the spouses
on unrelated matters; partnership disputes where the lawyer previously
represented one or more of the partners; or even contract disputes where
the former client’s expressed intentions and state of mind at the
time documents were drafted are relevant.
While there is no per se bar preventing a lawyer from testifying
about a former client, the lawyer generally cannot voluntarily testify
about the former client, subject to certain limited exceptions. As set
forth below, the extent to which a lawyer may voluntarily testify will
be determined by the nature of the testimony sought and the context in
which it is to be provided.
None of the rules in Canon 5 governing conflicts between lawyers and
clients create an absolute bar to voluntary testimony. Specifically,
DR 5-105 and DR 5-108(a)(1) prohibit a lawyer from representing, or being
employed by, a person where the representation is likely to be affected
by a conflict of interest between that person and the lawyer’s
current or former clients. But it is clear that providing testimony for
a person – including a former client – in a proceeding in
which the lawyer is not serving as counsel, falls well outside the meaning
of “representation” or “employment.” R estatement
(T hird) O f T he L aw G overning L awyers § 14 (2000) (hereafter, “Restatement”)
( “A relationship of client and lawyer arises when: a person manifests
to a lawyer the person’s intent that the lawyer provide legal
services for the person”) (emphasis added). For similar reasons,
DR 5-102 (the “lawyer-witness rule”) does not, per se,
bar a lawyer from testifying about a former client. That rule, too, analyzes
the problem in terms of current or prospective employment or representation,
not past employment or representation.
Other provisions of the Code speak to this issue, however. DR 5-108(A)(2),
which itself incorporates provisions of DR 4-101, expressly prohibits
a lawyer from using any confidences or secrets of a former client, unless,
as described in greater detail below, the confidence or secret has become
generally known, or if permitted by the exceptions delineated in DR 4-101(C).
These rules prevent attorneys from revealing the confidences or secrets
of any former clients by way of an affidavit, trial testimony, or otherwise. Accord EC
4-6 (the obligation to protect the confidences and secrets of a client
continues after the termination of employment); Swidler & Berlin
v. United States, 524 U.S. 399, 407 (1998) (holding that the attorney-client
privilege survives the death of the client, since posthumous application
of the privilege encourages full and frank communication with counsel); Jamaica
Pub. Serv. Co. v. AIU Ins. Co., 684 N.Y.S.2d 459, 462 (N.Y. 1998)
(an attorney owes a “continuing duty” to a former client
not to reveal confidences learned in the course of a professional relationship).
Although in a slightly different context, the Committee has previously
underscored the importance of protecting a client’s confidences
and secrets following the termination of the attorney-client relationship.
In our opinion 1999-7, the Committee addressed the question of whether
an attorney who had jointly represented a married couple in matters relating
to the wife’s immigration status could subsequently provide files
relating to that representation to her husband after litigation erupted
between the spouses. Recognizing that, as an evidentiary matter, no attorney-client
privilege could exist between these former clients, we nonetheless rejected
the contention that this allowed the lawyer to “choose sides” by
sharing confidences and secrets of one joint client with the other in
a dispute between them without consent. Concluding that the attorney
could not share documents with the husband relating to the wife’s
confidences and secrets without her consent, we noted:
As an ethical matter, if the Husband were able to compel the lawyer
to provide him on request with personal information about the former
co-client Wife under circumstances where it would be used against
the Wife simply because the information was no longer subject to the
attorney-client privilege, it would enable one co-client to utilize
the lawyer as a weapon against the other former co-client. In the Committee’s opinion,
this would violate not only the lawyer’s duties to protect and
preserve “secrets” of the client but would also involve
the lawyer in violating the duty to remain loyal to the client in
the matter for which he was retained.
N.Y.C. Bar. Op. 1999-7.
These precedents make clear that the relevant question for an attorney
voluntarily testifying about a former client is whether the attorney’s
testimony implicates confidences and/or secrets of the former client,
and, if so, whether any of the exceptions recognized in the Code are
applicable. As a first step, it is instructive to focus on the definitions
of “confidences” and “secrets.”
DR 4-101(A) defines a confidence as “information protected by
the attorney-client privilege under applicable law.” Secret is
defined far more broadly, as any “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.” See, ABCNY Formal Opinion 2005-02, Conflicts
Arising Solely From Possession of Confidential Information of Another
Client, at 3-4.
Secrets differ from attorney-client privileged information in at least
three significant ways.
F irst, unlike the evidentiary privilege, which generally requires
a communication between the attorney and the client, the duty
to safeguard secrets exists without regard to the source of the information – the
attorney need not have learned of the information from the client. N.Y.C.
Bar Op. 1999-7 (discussing “the lawyer’s obligation to protect
the client’s secrets without regard to the nature or source of
the information. . . .”), quoting EC 4-4; Wise v. Consolidated
Edison Co. of N.Y., Inc., 723 N.Y.S.2d 462, 463 (1st Dep’t
2001); see also In re Goebel, 703 N.E.2d 1045, 1047 (Ind. 1998);
Model Rules of Prof’l Conduct R. 1.6 cmt. 3 (2004) (duty to protect
client information covers “all information relating to the
representation, whatever its source”) (emphasis added).
Second, although the evidentiary privilege addresses the compelled
disclosure of client information during judicial proceedings, the protections
afforded to secrets under DR 4-101 relate to the attorney’s general
duty to maintain the confidentiality of all aspects of the client’s
representation. Put differently, DR 4-101 prohibits the disclosure of
any information pertaining to the representation of the client, but does
not act as a shield against disclosure of information in a judicial proceeding.
N.Y.C Bar Op. 1999-7 (“[i]t does not follow, however, that because
a claim of privilege would not be sustained, and the lawyer therefore
would be required to testify to the confidences . . . the attorney also
would be obligated to disclose ‘secrets’ of the [client]
outside the litigation context”); N.Y. State 555 (1984); Newman
v. Maryland, 2004 WL 2846242, at *9 (Md. Dec. 13, 2004); X Corp.
v. Doe, 805 F.Supp. 1298, 1309 (E.D. Va. 1992).1
Finally, unlike the evidentiary privilege which can be waived or destroyed
when third parties come to learn of the otherwise confidential communication,
the attorney’s duty to protect secrets is not vitiated because
others come to learn that information. N.Y.C. Bar. Op. 1999-7 (quoting
EC 4-4); In re Holley, 729 N.Y.S.2d 128, 131 (1st Dep’t
2001); Wise, 723 N.Y.S.2d at 463. Indeed, as DR 5-108(A)(2)
makes clear, it is only when a secret has become “generally known” that
the lawyer is relieved from the duty not to use it. Cf.
Jamaica Pub. Serv. Co., 684 N.Y.S.2d at 462 (reversing disqualification
order and holding that lawyer’s disclosure of generally known,
but harmful, information about a client fell within exception contained
in DR 5-108(A)(2)).
Accordingly, the duty to protect secrets could encompass anything from
a client’s age to a client’s alcoholism, depending on the
circumstances. R oy S imon, S imon’s N ew Y ork C ode O f P rofessional
R esponsibility A nnotated 442 (Thomson West 2004); see also N.Y.C.
Bar Op. 2002-1 (potential client’s disclosure to an attorney of
the location of a car he allegedly stole constituted both a confidence
and a secret). Not everything that an attorney knows or learns about
a client is necessarily an ethically inappropriate subject for testimony,
however. For instance, in N.Y.C. Bar Op. 1997-2, the Committee noted
that a lawyer would not ordinarily be forbidden from disclosing his or
her observations of a client’s physical condition, assuming such
condition was generally exposed to the public.
Moreover, DR 4-101(C) permits attorneys to divulge client confidences
and secrets under the following circumstances:
A lawyer may reveal (1) confidences or secrets with the consent of
the client or clients affected, but only after a full disclosure
to them, (2) confidences or secrets when permitted under Disciplinary
Rules or required by law or court order, (3) the intention of a client
to commit a crime and the information necessary to prevent the crime,
(4) confidences or secrets necessary to establish or collect the lawyer’s
fee or to defend the lawyer or his or her employees or associates against
an accusation of wrongful conduct, or (5) confidences or secrets to
the extent implicit in withdrawing a written or oral opinion or representation
previously given by the lawyer and believed by the lawyer still to
be relied upon by a third person where the lawyer has discovered that
the opinion or representation was based on materially inaccurate information
or is being used to further a crime or fraud.
To illustrate the effect of these exceptions, by way of example, under
DR 4-101(C)(1), a lawyer could submit an affidavit proffering observations
concerning a former client’s fitness as a parent in a child custody
dispute – if the lawyer obtains the former client’s consent
after fully disclosing the implications of the testimony in the affidavit.
Likewise, courts have recognized that, pursuant to DR 4-101(C)(4), an
attorney may use client confidences or secrets to defend himself or herself
from a claim or counterclaim brought by the client, or as evidence in
a fee collection dispute, but may not necessarily be permitted to use
that same information affirmatively in a different type of claim against
a client. See, e.g., Eckhaus v. Alfa-Laval, Inc., 764 F.Supp.
34 (S.D.N.Y. 1991) (former in-house attorney’s defamation claim
against former employer dismissed because it required inappropriate use
of employer’s confidences and secrets, but attorney could use same
material to defend against client’s counterclaim).
DR 4-101(C)(2) also makes clear that an attorney ordered by a court,
or compelled by operation of law, to testify may do so without running
afoul of the lawyer’s ethical obligations to former clients. N.Y.C.
Bar Op. 1997-2; Bronx Legal Services v. Legal Services Corp.,
2002 WL 183597, at *4 (S.D.N.Y. Aug. 8, 2002). Thus, if in the course
of voluntarily testifying, a lawyer is ordered by the court, or otherwise
required, to respond to a question calling for disclosure of a confidence
or secret, the lawyer may do so without fear of violating the Code.
The lawyer should, however, assert any non-frivolous objection or evidentiary
privilege or protection (e.g., the work product doctrine). Should the
court overrule the objection or assertion of privilege or other protection,
the attorney may then testify about the privileged or protected material
without offending the Code. N.Y.C. Bar Op. 1997-2; Restatement § 63
(“A lawyer may use or disclose confidential client information
when required by law, after the lawyer takes reasonably appropriate steps
to assert that the information is privileged or otherwise protected against
disclosure.”)2 If the information
is a secret, but not a confidence, and the lawyer does not have consent
to disclose it, the lawyer should likewise assert any applicable non-frivolous
objection, to the extent possible and practicable, if under the applicable
rules the lawyer may refuse to answer the question until the objection
is resolved.
Conclusion
In conclusion, there is no per se bar against a lawyer voluntarily
testifying about a former client. The lawyer should not, however, reveal
any information that would constitute a “confidence” or “secret” unless
one or more of the exceptions set forth in DR 4-101(C) apply, or when
the “confidence” or “secret” has become “generally
known,” within the meaning of DR 5-108(a)(2). Of course, whether
specific information constitutes a “confidence” or “secret” will
depend on the circumstances of the case.
The following guidelines address the most common situations:
- If the information sought is neither a confidence nor a secret,
the lawyer may voluntarily testify regarding his representation of
a former client.
- If the information sought is a confidence or secret, and the lawyer
is willing to testify voluntarily, the lawyer should generally seek
to obtain the former client’s informed consent before testifying
(unless another exception to the duty of confidentiality is applicable, see DR
4-101(C)). If consent is not obtained, and no other exception is applicable,
the lawyer should not voluntarily testify.
- If, while voluntarily testifying, the lawyer is asked a question
calling for disclosure of a confidence and consent has not
been obtained to waive the privilege, and no other exception to the
privilege is applicable, the lawyer should assert the privilege and
other applicable, non-frivolous objections. If the claim of privilege
and objections are overruled, the lawyer may answer the question.
- If, while testifying, the lawyer is asked a question calling for
disclosure of a secret and consent has not been obtained to
disclose the secret, and no other exception to the duty of confidentiality
is applicable, the lawyer should assert any other applicable, non-frivolous
objection that would enable the lawyer to avoid disclosing the secret.
If none is available, the lawyer may answer the question. If any objection
is overruled, the lawyer may answer the question.
March, 2005
465532.3
1 We do not mean to suggest that
there are no valid objections that can be raised to testifying about
a client’s secrets in a litigation setting. In appropriate cases,
for example, a testifying lawyer, or separate counsel for the former
client, might be able to assert that the probative value of such testimony
is outweighed by its prejudice to the former client. In other settings,
it may be appropriate for the testifying lawyer or other counsel for
the former client to preserve the client’s secrets by seeking to
bring the testimony under, or applying for, a protective order.
2 We do not address whether that
same attorney could, within the bounds of the Code, risk a contempt citation
and refuse to comply with a Court order overruling a privilege objection
so as to facilitate the client’s ability to obtain appellate review.
The views of certain commentators and courts suggest that an attorney
could do so without running afoul of DR 7-106(A), which requires an attorney
not to “disregard” the “ruling of a tribunal” other
than to take “good faith” steps to test the validity of the
ruling. See D.C. Bar Op. 288 (concluding, in context of Congressional
subpoena for documents, that although a lawyer may ethically comply with
an adverse privilege ruling, "the lawyer retains the discretion
to risk being held in contempt and litigate the issue in the courts,
based on the totality of the circumstances."); Briggs v. Salcines,
392 So.2d 263, 266 (Fla. Dist. Ct. App. 1980) (rejecting possibility
that lawyer should have to risk contempt to appeal adverse privilege
ruling and holding “[w]e think that this is too great a price for
him to have to pay in order to protect his client’s interests”);
Roy Simon, Can You Appeal Adverse Privilege Rulings in Discovery?,
T he New York Professional Responsibility Report, Dec. 2004, at 4-5.
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