NEW YORK STATE BAR ASSOCIATIONCommittee on
Opinion #528 - 02/17/1981
Topic: Client's confidences and secrets; client's whereabouts
Digest: Law of evidentiary privilege governs obligation to preserve
client confidences and secrets when lawyer is required to testify, but
lawyer may postpone testifying until validity of adverse ruling is
determined on appeal
Code: Canon 4; EC 4-1,4-2, 4-4; DR 2-109(A)(2), 4-101(A), (B) and
(C), 7-102(A)(2), 7-102(A)(3)
May a lawyer, testifying before a grand jury pursuant to subpoena,
properly refuse to reveal a client's whereabouts when such information
was received from the client in confidence?
A lawyer's obligation to preserve client confidences against
disclosure when called upon to give testimony under compulsion of law is
somewhat more limited than the broad ethical obligation mandated by DR
4-101(A) and (B). Cf. Canon 4 with former Canon 37. The rules applicable
to testimonial disclosure are primarily legal and predicated on the law
of evidentiary privilege. While the lawyer continues to have important
ethical obligations, these matters are largely determined by the
governing legal requirements.
The basic ethical rule relating to the preservation of client
confidences in non-testimonial situations is considerably broader than
the attorney-client privilege. It applies to substantially all
information gained in the professional relationship. See, EC 4-4; see
also Hazard, Ethics in the Practice of Law, 21-33 (1978) and Drinker,
Legal Ethics, 131-139 (1953). This rule is subject to a few limited, but
well recognized, exceptions. See e.g., EC 4-2 and DR 4-101(C); cf. DR
7-102(A)(3). As to matters falling within the attorney-client or other
evidentiary privilege, the general ethical obligation to preserve
confidences may also take the form of a duty imposed by law. See, e.g.,
Although information may be confidential, and thus protected from
normal disclosure, it is only protected from testimonial disclosure if
it falls within the attorney-client or other applicable evidentiary
privilege. Where an evidentiary privilege protects information from
compelled disclosure, the lawyer has an ethical obligation under the
Code "to act in a manner which preserves the...privilege" and "to assert
[it] unless it is waived by the client." EC 4-4. The same ethical
obligation would exist where the lawyer is in doubt as to whether an
evidentiary privilege is applicable. If a lawyer has a good faith belief
that testimony which he is asked to give may be protected from
testimonial disclosure by law, he should assert the privilege.
Information respecting a client's whereabouts "gained in the
professional relationship that the client has requested be held
inviolate" squarely falls within the general ethical obligation of
preserving the confidentiality of client secrets. DR 4-101(A) and (B).
Hence, on the facts of the question posed, the lawyer clearly may refuse
to divulge his client's whereabouts when initially asked to reveal that
information without judicial compulsion.
A problem arises, however, when the lawyer's claim of privilege is
rejected by a court ruling or order. At this point, the information
falls within one of the limited exceptions to the normal rule of
confidentiality. DR 4-101(C) expressly provides that the "lawyer may
reveal [c]onfidences or secrets when required by law or court order." In
addition, DR 7-102(A)(3) provides that "[i]n his representation of a
client, a lawyer shall not...knowingly fail to disclose that which he is
required by law to reveal. While there is a possible ambiguity in the
term "required by law to reveal," we interpret it as applying only to
court orders which are not subject to further review. We do not believe
it should mandate immediate compliance with orders which are subject to
reversal or modification on appeal or other review, even though the
lawyer may be faced with running the risk of being held in contempt of
court. Where the order is subject to good faith challenge, the
lawyer should be free to post pone giving the court ordered testimony
pending appropriate review. Whether such further review should be sought
depends, inter alia, on the client's wishes and on whether the good
faith standards of DR 2-109(A)(2) and DR 7-102(A)(2) can be met.
Our conclusion that a lawyer may under certain circumstances
ethically postpone giving court ordered testimony pending the timely
exhaustion of available further review appears to be consistent with the
position articulated by the Supreme Court in Maness v. Meyers, 419 U.S.
449, 460-461 (1975), where the Court stated:
When a court during trial orders a witness to reveal information,
however, a different situation may be presented.
Compliance could cause irreparable injury because appellate courts
cannot always "unring the bell" once the information has been released.
Subsequent appellate vindication does not necessarily have its ordinary
consequence of totally repairing the error. In those situations we have
indicated the person to whom such an order is directed has an
alternative [of seeking "pre-compliance review"].
For the reasons stated, the question posed is answered in the
affirmative, provided a good faith claim of privilege is raised, and
pending timely exhaustion of available further review of any court order
rejecting the claim of privilege.