Formal Opinion 2005-03: Voluntary Attorney Testimony Concerning Former Clients

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

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:

1. If the information sought is neither a confidence nor a secret, the lawyer may voluntarily testify regarding his representation of a former client.
2. 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.
3. If, while voluntarily testifying, the lawyer is asked a question calling for disclosure of aconfidence 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.
4. 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