What must a defense lawyer do if subpoenaed about a client's exculpatory statement for another defendant?

Plain-English summary

A defense lawyer's client made statements that could exculpate another defense lawyer's client. The first client then refused to testify or allow the lawyer to recount those statements.

If subpoenaed, the opinion said the lawyer must assert the duty of confidentiality under Rule 4-1.6 and fully present the issue to the court. It described that duty as separate from and broader than statutory attorney-client privilege. After those steps, the lawyer could comply with the court's order without violating the rule.

Currency note

This 1994 opinion predates Missouri's 2007 amendments to its Rules of Professional Conduct. An official reference note identifies July 1, 2007 amendments to Rules 4-1.9 and 4-1.10. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context and verify current rules before relying on it.

Common questions

Q: Was the client's refusal to consent the end of the inquiry?

A: No. If called to testify, the lawyer had to assert confidentiality and fully present the issue to the court.

Q: How did the opinion compare confidentiality and privilege?

A: It said the Rule 4-1.6 duty was separate from and much broader than statutory attorney-client privilege.

Q: Could the lawyer obey a court order?

A: Yes, after asserting the duty and fully presenting the issue to the court.

Background and rules framework

The opinion addressed a subpoena for a defense lawyer's testimony about a client's statement and expressly applied Rule 4-1.6.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-1.6

See also

• Missouri Informal Op. 950018: Subpoena about former client fraud
• Missouri Informal Op. 950264: Subpoena for client records

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/940043/

Original opinion text

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

QUESTION: Attorney is a criminal defense attorney. Attorney´s client met with another criminal defense attorney and Attorney to discuss the client of the other criminal defense attorney. Attorney´s client made statements that would be exculpatory for the other criminal defense attorney´s client. Attorney´s client now refuses to testify to these statements or to allow Attorney to testify to them. If Attorney is subpoenaed, what must attorney do? ANSWER: If Attorney is called to testify, Attorney must assert the duty of confidentiality under Rule 4–1.6, which is separate from, and much broader than, the statutory attorney-client privilege. After Attorney has asserted the duty of confidentiality and fully presented the issue to the court, Attorney may comply with the court´s order without violating the rule.