The Committee has been asked for its opinion concerning whether, and if so to what extent, an attorney may provide his or her testimony in the following circumstances.
The Inquirer brought and, in 1985, settled a suit on behalf of H and W, who were husband and wife, for medical malpractice resulting in W's loss of sight. Before all funds were distributed to the clients, they separated from each other. With their consent, Inquirer has escrowed the undistributed funds.
In May 1990, W's attorney requested Inquirer's written opinion of the proper allocation of the settlement proceeds between W and H. When H's attorney objected, Inquirer declined the request but stated that either H or W could subpoena Inquirer and that, if the court permitted, Inquirer would answer. Inquirer also provided copies of the pertinent file to the separate attorneys for W and H.
The lawyer for W then expressed his intention to subpoena Inquirer, and again H's lawyer objected, adding that he or H would consider pursuing disciplinary action against Inquirer if Inquirer testified even under subpoena.
Inquirer asks what, if any choice, does she or he have if subpoenaed to testify at an equitable distribution hearing.
The Rules of Professional Conduct most clearly involved are 1.6(a) and 1.9(b). In pertinent part RPC 1.6(a) states, A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation .... Rule 1.9(b) states, A lawyer who has represented a client in a matter shall not thereafter...use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known. Certain official Comments to the Rules of Professional Conduct also provide guidance in answering the question posed. A Comment to Rule 1.6 points out that, unlike the attorney-client testimonial privilege, [t]he confidentiality rule applies not merely to matters communicated in confidence by the client but also to information relating to the representation, whatever its source. The Comment explains that, while the privilege applies in judicial and other proceedings in which the lawyer is called to testify, the rule of confidentiality concerning client information applies in situations other than those where evidence is sought from the lawyer through compulsion of law. Another Comment to the same rule addresses confidential information that comes within the attorney-client privilege, as follows:
If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, Rule 1.6(a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.
The Committee has assumed that Inquirer's opinion concerning the allocation of settlement proceeds is founded upon information relating to representation of a client within the purview of Rules 1.6(a) and 1.9(b) or at least that cross-examination concerning that opinion reasonably can be expected to call for disclosure of such information. The Committee also assumes (and makes no determination) that Inquirer's testimony at an equitable distribution hearing would be relevant to the issue.
On the basis of the foregoing, if Inquirer is subpoenaed to testify as contemplated, he or she should assert the confidentiality of the information and decline to disclose it until a final order of the court is entered compelling the disclosure.