September 17, 1981
A lawyer who is served with a deposition notice or subpoena seeking the production or testimony of what may be confidential information has a duty to assert the attorney/client privilege in order to obtain a judicial ruling as to whether the information should be disclosed.
References: DR 4-101(B) and (C).
You note in your inquiry letter that your law firm handles exclusively, product liability cases for plaintiffs. You letter further states that your firm has acquired and possesses technical knowledge relating to engineering design. Your inquiry reveals the fact that most of your firm's specific technical information relating to a claimed defective product "is learned through the defendant's engineers." You state that before engineering depositions are taken, defendant usually propounds a set of interrogatories requesting technical details of the alleged defect and the persons reaching such conclusions. Your inquiry admits to the fact that your law firm answers the subject interrogatories based on its own conclusions. You further state that upon answering the interrogatories as noted, you then are noticed for counsel deposition. You then indicate that it is your firm's practice to appear and refuse to answer any questions other than interrogatory identity.
Based on these detailed facts, you wish to know whether legal counsel can "notice the deposition (or subpoena for deposition of) his/her opposing counsel in a civil litigation to give testimony regarding that litigation"?
To the extent that this matter relates to the law of discovery, it is a legal, judicial issue and not per se, an ethical issue to come within the jurisdiction of this Committee. However, if the technical information [work product] that your law firm possesses and that formulates the basis for the answers to the stated promulgated interrogatories, supra, is gained through the attorney-client relationship, then the following professional ethical rules apply. Canon 4 requires a lawyer to preserve the confidences and secrets of a client. DR 4-101 defines a confidence to mean "information protected by the attorney-client privilege under applicable law, and a secret refers to 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."
DR 4-101(B) states:
"(B) Except when permitted under DR 4-101(C), a lawyer shall not knowingly:
"(1) Reveal a confidence or secret of the client.
"(2) Use a confidence or secret of his or her client to the disadvantage of the client.
"(3) Use a confidence or secret of his or her client for the advantage of him of herself or a third person, unless the client consents after a full disclosure."
DR 4-101(C) gives the lawyer discretion to reveal, under circumstances enumerated in the sub-rule, that states:
"(C) 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 by Court Order."
The ethical standard of client-attorney confidentiality applies not merely to a matter communicated in "confidence" by the client or prepared for litigation, but also to all information concerning the client whatever its source, except as stated in DR 4-101(B) and (C). This means you may not disclose the technical information without the client's consent after full disclosure in the absence of a Court Order.
In CI-389, this Committee opined that an attorney "who is served with a subpoena seeking the production of what may be confidential information has the duty to assert the attorney/client privilege in order to obtain a judicial ruling as to whether the information should be disclosed." This opinion appears applicable the present circumstances as well. Notwithstanding the holding in CI-389, it is apparent from the factual circumstances that your law firm answers the subject interrogatories based upon its own acquired conclusions. Should a trial court rule that the answering party is the client's expert witness, it is evidentially questionable for the answering lawyer to claim privilege to preclude further and more detailed discovery form opposing counsel. Whatever attorney-client privilege might otherwise apply, it appears likely that your clients have waived the privilege when authorization is confirmed upon your law firm to hold themselves out as expert witnesses. Given the accuracy of the above noted scenario, an ethical question arises from this interrogatory answering practice. DR 5-102 provides:
"(A) If after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in the firm ought to be called as a witness on behalf of the client, the lawyer shall withdraw from the conduct of the trial and the firm, if any, shall not continue representation in he trial, except that the lawyer may continue the representation and he or she or a lawyer in the firm may testify in the circumstances enumerated in DR 5-101(B)(1) through (4).
"(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer or a lawyer in the fir may be called as a witness other than on behalf of his or client, the lawyer may continue the representation until it is apparent that the lawyer's testimony is or may be prejudicial to the client.
DR 5-101(B)(1) through (4) states:
"A lawyer shall not accept employment in contemplated or pending litigation if the lawyer knows or it is obvious that he or she or a lawyer in the firm ought to be called as a witness, except that the lawyer may undertake the employment and he or she or a lawyer in the firm may testify:
"(1) If the testimony will relate solely to an uncontested matter.
"(2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
"(3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or the lawyer's firm to the client.
"(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or the lawyer's firm as counsel in the particular case."
As noted, the above referenced ethical rules could prove to be a restrictive influence on your current interrogatory answering practices.
Each incident of alleged confidentiality, when viewed within the parameters of the discovery rules must be decided on a case by case approach.