If a court orders a lawyer to reveal client confidences the lawyer thinks are irrelevant to the case, can the lawyer comply without violating the ethics rules?

Plain-English summary

A lawyer, as a private litigant, was ordered by a court to reveal confidences and secrets of his client that he believed had nothing to do with the pending litigation. The question was whether he could comply without violating the Mississippi Rules of Professional Conduct.

The opinion answers through Rule 1.6, quoting Rule 1.6(a) (no disclosure absent informed consent, implied authorization, or paragraph (b)) and Rule 1.6(b)(6) (a lawyer may reveal information to comply with other law or a court order). It notes that whether particular information is privileged under Mississippi Rule of Evidence 502 (the lawyer-client privilege) is a question of law, not ethics, and is beyond the Committee's authority; but resolving that legal question is not necessary to the opinion.

The opinion concludes that when a rule of law or a specific court order requires revealing confidences or secrets, even ones the lawyer believes are irrelevant, the lawyer is required to make the disclosures, and doing so is not inconsistent with the Rules. The Committee adds that, while the lawyer is not subject to discipline for revealing confidences under court order, he is nonetheless required to raise the confidentiality or secrecy of the information, and any attendant attorney-client privilege, in the proceeding where disclosure is sought, and to actively assert it by motion for a protective order or other available procedural means.

In practice

Under this opinion, a court order or rule of law requiring disclosure overrides the general confidentiality duty, and a lawyer who complies is not subject to discipline, under Rule 1.6(b)(6). The opinion attaches a procedural condition: before disclosing, the lawyer must raise and actively assert the information's confidentiality and any privilege in the proceeding, for example by moving for a protective order. The opinion does not decide whether any particular information is privileged, treating that as a question of law.

Common questions

Q: Can a lawyer obey a court order to reveal client confidences?

A: Per this opinion and Rule 1.6(b)(6), yes; the lawyer is required to disclose when law or a court order compels it and is not subject to discipline for doing so.

Q: What must the lawyer do before disclosing?

A: The opinion requires the lawyer to raise the confidentiality and any attorney-client privilege in the proceeding and actively assert it, such as by moving for a protective order.

Q: Does it matter that the lawyer thinks the information is irrelevant?

A: No. The opinion concludes that even where the lawyer believes the confidences have nothing to do with the litigation, a valid order or rule of law requires disclosure.

Q: Does the opinion decide whether the information is privileged?

A: No. The opinion states that whether information is privileged under Mississippi Rule of Evidence 502 is a question of law beyond the Committee's authority.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.6 (confidentiality of information, the analog of Model Rule 1.6), specifically Rule 1.6(a) and the court-order exception in Rule 1.6(b)(6). It distinguishes the evidentiary lawyer-client privilege under Mississippi Rule of Evidence 502 as a legal question outside its ethics jurisdiction.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / Mississippi Rule 1.6: confidentiality of information, including Rule 1.6(b)(6) (disclosure to comply with other law or a court order).

Other authorities cited:

• Mississippi Rule of Evidence 502: the lawyer-client privilege; the opinion notes its application is a question of law, not ethics.

See also

• MS Bar Ethics Op. 124: Revealing Confidences by Court Order
• MS Bar Ethics Op. 119: Duty of Confidentiality to a Deceased Client
• MS Bar Ethics Op. 101: Legal Services Files vs. Funder's Auditors

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/95/
• Original PDF: https://www.msbar.org/media/3852/35a-et-op-95.pdf

Original opinion text

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

ETHICS OPINION NO. 95

OF THE MISSISSIPPI BAR

RENDERED June 07, 1984

AMENDED April 06, 2013

CLIENT CONFIDENCES - An attorney may reveal confidences or secrets of his client when required by law or court order.

The Ethics Committee of the Mississippi Bar has been asked to render an opinion on the following question:

When a lawyer as a private litigant is ordered by the Court to reveal confidences and secrets of his client, which confidences and secrets the lawyer believes to have nothing to do with the pending litigation, may he do so without violating the Mississippi Rules of Professional Conduct?

The ethical implications of this subject are fully covered by Rule 1.6, MRPC:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).

(b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:
. . .

(6) to comply with other law or a court order.

We note that Rule 502, Mississippi Rule of Evidence, provides the Lawyer-Client Privilege for evidentiary purposes. The determination of whether information is privileged or not is a question of law, not ethics, which is beyond the authority of this committee to address.

Resolution of this legal question is not necessary to our opinion, however. Rule 1.6, MRPC, provides that a lawyer may reveal confidences or secrets when required by law or court order. When a rule of law or a specific court order requires the revelation of the confidences or secrets, even though the lawyer may believe they have nothing to do with the pending litigation, he is required to make those disclosures and his revelations are not inconsistent with the requirements of the Mississippi Rules of Professional Conduct.

It is the opinion of the committee that, while an attorney is not subject to disciplinary action for revealing confidences or secrets of a client under court order, he is nonetheless required to raise the issue of the confidentiality or secrecy of the information, and any attendant attorney-client privilege, in the proceedings where the disclosure is sought and to actively assert this confidentiality, secrecy, or privilege, by motion for protective order or other available procedural means.