December 8, 1990
A judge who is asked for privileged information concerning a former client with regard to which the client does not consent to disclosure, must await a subpoena, appear in court to exercise the attorney-client privilege, and await the presiding judge's instruction on whether to release the information.
References: MRPC 1.6; CI-389, CI-550, CI-665, CI-702, CI-1103, CI-1188; Eicholtz v Grunewald, 313 Mich 666 (1946).
Prior to assuming the bench, a judge was the lawyer for the personal representative of an estate. The personal representative is now being sued by the estate of another brother for misappropriation of funds while acting as personal representative. The plaintiff's lawyer in the misappropriation action has asked the judge to disclose any information in the judge's possession concerning amounts received by the judge's client from the estate. The judge has not checked the file to determine whether any such information is present, but seeks advice on the authority to release the information if it exists.
We do not know in this inquiry whether the judge's former client is still living, but the attorney-client privilege continues even after the death of the client, Eicholtz v Grunewald, 313 Mich 666 (1946), and may not be waived by the lawyer. In prior opinions we have discussed a lawyer's duty when asked to disclose information protected by attorney-client privilege. Although what constitutes privileged information is a question of law and beyond the scope of the Committee's jurisdiction, the procedures for responding to such requests are the same for judges as for lawyers.
A lawyer who is asked to produce information which is covered by attorney-client privilege or which contains confidences and secrets within MRPC 1.6, and with regard to which the client does not consent to disclosure, must await a subpoena, exercise the attorney-client privilege, and await the presiding judge's instruction on whether to release the information. CI-389, CI-550, CI-665, CI-702, CI-1103, CI-1188. This procedure is consistent with a judge's duties under MCJC 2C not to appear as a witness unless subpoenaed.