August 6, 1985
A lawyer compelled to testify concerning alleged activities of a client must preserve the confidences and secrets of the client, absent court order or informed waiver by the client.
A lawyer compelled to testify concerning a client's activities is not required to withdraw as counsel unless the testimony or assertion of the lawyer/client privilege would be prejudicial to the client.
References: MCPR Canon 4, 5, 7; DR 4-101, DR 5-101, DR 5-102, DR 7-102; CI-480, CI-701, CI-665, CI-319.
A lawyer represents a seller in the sale of a restaurant, including equipment, personal and real property. The buyer, represented by counsel throughout all negotiations and at the closing, later proposes to sell to a third party all of the property purchased from seller. The buyer allegedly discovers that the realty conveyed in the transaction is not what the buyer had believed was involved in the sale. The buyer retains new counsel and files suit against the seller for rescission and other relief, based upon fraud and misrepresentation. Buyer's counsel wants to take the deposition of seller's lawyer; the seller refuses to waive any lawyer/client privilege.
- If seller refuses to waive the lawyer/client privilege, what are the obligations of seller's counsel at the proposed deposition?
- Is seller's counsel compelled to withdraw from the case, since the deposition has been scheduled?
If applicable court rules compel seller's counsel to appear at the deposition, counsel must honor and preserve the lawyer/client privilege and must comply with MCPR Canons 4 and the related Disciplinary Rules of the Code of Professional Responsibility. DR 4-101(A) and (B) define confidences and secrets and prohibit a lawyer from revealing a confidence or a secret, respectively. Only under the circumstances set forth in DR 4-101(C) may a lawyer disclose confidences or secrets. A lawyer may not rely upon Canon 4 and the lawyer/client privilege as a shield against testifying at the deposition, but a lawyer must not testify about confidences or secrets learned in the course of the lawyer/client relationship absent the circumstances set forth in DR 4-101(C). See CI-480, CI-701, CI-665, CI-319.
While preserving a client's confidences and secrets, a lawyer must comply with Canon 7 and DR 7-102. If seller's counsel learns that seller has perpetrated a fraud upon the buyer in the transaction for which the lawyer's services were used, the lawyer must call upon the client to correct the fraud; if seller refuses or is unable to do so, the lawyer must reveal the fraud to the affected person. The facts set forth above do not suggest this possibility, but the lawyer should be aware of the requirement.
Seller's counsel is not compelled to withdraw as counsel upon the scheduling of the deposition. Canon 5, DR 5-101 and DR 5-102 provide the necessary guidance for resolution of this Issue. Seller's counsel may continue representation consistent with DR 5-102(B). The lawyer must take care to determine whether testifying at the deposition may be prejudicial to the client if that deposition is somehow offered at trial. Obviously, if the lawyer does not testify because of the lawyer/client privilege, then DR 5-102(B) does not require withdrawal.