Could a lawyer testify when subpoenaed about a former client's possible fraud in an administrative hearing?

Plain-English summary

A lawyer withdrew after learning that a client might be involved in fraud related to the representation. The lawyer was later subpoenaed to testify before an administrative law judge.

Without the former client's consent, the opinion barred testimony unless the judge ordered it after the lawyer fully raised confidentiality under Rule 4-1.6. The lawyer should seek an order as specific and limited as possible. The opinion said an appeal of that order was not required.

Currency note

This 1995 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: Did the subpoena alone permit testimony?

A: No, absent former-client consent. The opinion required the confidentiality issue to be fully raised and an order to testify.

Q: What limitation on the order did it seek?

A: As specific and limited an order as possible.

Q: Must the lawyer appeal the order before testifying?

A: No. The opinion said an appeal was not required.

Background and rules framework

The opinion applied Missouri Rule 4-1.6 to subpoenaed testimony about a former client in an administrative proceeding and distinguished a subpoena from a disclosure order after confidentiality was fully raised.

Citations and references

Rules of Professional Conduct:

• Missouri Rule 4-1.6

See also

• Missouri Informal Op. 950125: Estate lawyer testimony
• Missouri Informal Op. 950091: Adverse expert opinion disclosure

Source

• Landing page: https://mo-legal-ethics.org/informal-opinion/950018/

Original opinion text

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

QUESTION: Attorney represented a client and withdrew when he learned that his client may be involved in fraud related to the matter. Attorney has now been subpoenaed to testify about the situation in a proceeding before an administrative law judge. May Attorney testify? ANSWER: If the former client does not consent, Attorney may not testify unless ordered to do so by the administrative law judge after the issue of confidentiality under Rule 4–1.6 has been fully raised and Attorney has been ordered to testify. Attorney should seek to have any such order as specific and limited as possible. Attorney will not be required to appeal the ruling of the administrative law judge.