November 24, 1981
Whether or not the attorney-client privilege extends to matters discussed with a client prior to the attorney's admission to the Bar is a question of law, which if beyond the jurisdiction of the Ethics Committee. DR 4-101(A).
A lawyer who is served with a deposition notice or subpoena seeking the production or testimony 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, unless the client consents to the disclosure.
A lawyer is ethically required to abide by an issued court order, notwithstanding the lawyer's personal aversion to the issued order.
References: DR 4-101(B) and (C), DR 1-102(A)(5); CI-389
A lawyer was house counsel for a corporation for several years. For Four years the lawyer functioned as an assistant to the president of the corporation. While house counsel to the corporation, you functioned as a business advisor and representative. Your "former client" [presumably the corporation[, instituted litigation against several firms. The defendants in the above noted litigation, deposed you. Upon your former client's requests you did not answer certain posed questions asserting the attorney-client privilege defense.
The defense counsel will be bringing motions to compel answers to the propounded deposition questions. Given the above noted factual circumstances you request answers to the following respective questions:
- Would the attorney/client privilege extend to discussions between my client and myself prior to the admission to the Bar, while I was an assistant to the president?
- If ordered by a circuit court of the State of Michigan to answer questions after the court decided the communication subject to the question was not privileged, will the exception to Canon 4 set forth in DE 4-104(C)(2) apply even though my client's counsel of record or I disagree with the court's decision and believe the court's opinion could be overruled on appeal?
- Is information I obtained as a result of the business function of my former employment, which would not be subject to the attorney client privilege if I were not a lawyer, privileged?
To the extent that question one (1) relates to the law of evidence and discovery, it is a legal and judicial issue and not per se, an ethical issue. However, if the courts should rule that your stated relationship was tantamount to an attorney-client relationship, then the following professional ethical rules apply:
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 his or her 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 himself or herself or of a third person, unless the client consents after a full disclosure."
DE 4-101(C) gives the lawyer discretion to reveal, under circumstances enumerated in the sub-rule, which 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 attorney/client 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, that should a court of competent jurisdiction find the existence of a attorney/client privilege based on the submitted facts, you may not disclose information without the client's consent after full disclosure, in the absence of a court order to do so.
In CI-389 this Committee opined that a lawyer "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."
Attorneys of this state are ethically required to follow a court order, notwithstanding the lawyer's divergent personal opinion concerning the fairness or appropriateness of an issued court order. It is obvious that an appellate procedure exists to seek redress from an alleged adverse judicial ruling. DE 1-102(A)(5) states:
DR 4-101(C)(2) would apply notwithstanding your announced disagreement with a heretofore-unissued court order.
In response to your third inquiry, this Committee is not charged with the responsibility of issuing substantive or procedural rulings relating to the issue of privilege communication.
Each incident of alleged confidentiality, when viewed within the parameters of the discovery rules must be decided on a case by case approach.