May a lawyer repeat former-client information as an expert witness because similar testimony is already public?

Plain-English summary

The lawyer planned to testify as an expert about a former representation and had given similar testimony under court order in a prior case. The opinion says Rules 4-1.9(c) and 4-1.6 continue to protect former-client information even when the earlier testimony has entered a public record.

Disclosure must fit a valid Rule 4-1.6 exception. Rule 4-1.6(b)(4) permits what is reasonably necessary to comply with other law or a court order, but the office does not decide whether another law requires it. For a new order without consent, the opinion calls for nonfrivolous objections and limits on access to the testimony; if review is not sought, the lawyer may comply.

The opinion expressly distinguishes the ethics duty of confidentiality from the narrower attorney-client privilege.

In practice

Public availability of earlier testimony does not, by itself, permit the expert witness to repeat former-client information under this opinion. A valid exception and its limits govern any disclosure.

Common questions

Q: Does a public court record end confidentiality?

A: No. The opinion says the information remains confidential despite appearing in a public record.

Q: Can the lawyer obey a new court order?

A: After asserting all nonfrivolous objections, the lawyer may comply to the reasonably necessary extent if review is not sought.

Q: Is ethics confidentiality identical to attorney-client privilege?

A: No. The opinion says the ethical duty is broader.

Background and rules framework

Rules 4-1.9(c) and 4-1.6 protect former-client information. Rule 4-1.6(b)(4) and Comments [10] through [12] address compelled disclosure, objections, and limits.

Citations and references

Missouri Rules of Professional Conduct:

• Rules 4-1.9(c), 4-1.6, and 4-1.6(b)(4)
• Rule 4-1.6 Comments [10], [11], and [12]

Other opinions cited:

• Missouri Informal Ethics Opinion 20030016 (2003)

See also

• Missouri Informal Op. 2015-09: Financial Disclosure
• Missouri Informal Op. 2017-04: Court-Ordered Disclosure

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/2015-02/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Question: Where Attorney plans to testify as an expert witness, may Attorney answer questions about Attorney’s prior representation of a client, where Attorney was ordered by a court in the previous case to testify about confidential information, and where Attorney’s testimony in the present matter would be similar to the testimony now contained in the public record?

Answer: Information related to Attorney’s representation of a former client is confidential and protected from disclosure by Rules 4–1.9(c) and 4–1.6. Even if the information is a matter of public record, it is nevertheless confidential information and must not be disclosed by Attorney except pursuant to a valid exception to Rule 4–1.6. See Comment [10]. Attorney is permitted to disclose information related to the former representation to the extent reasonably necessary to comply with other law or a court order. Rule 4–1.6(b)(4). Whether other law requires disclosure of the information is a matter outside the scope of the Rules of Professional Conduct. If the court in which Attorney testifies orders Attorney to reveal confidential information without former client consent, Attorney should oppose the order and assert all nonfrivolous claims that the order is not authorized by other law or that the information is protected by privilege or other applicable law. Comment [11]. The ethical obligation to protect confidential information is broader than the attorney-client privilege. See Mo. Informal Ethics Op. 20030016 (2003). Attorney should seek to ensure that any order is as specific as possible and limits access to the testimony to those with a need to know. Rule 4–1.6, Comment [12]. Unless review is sought, Attorney is permitted to comply with the order.