Can a lawyer subpoenaed before a grand jury refuse to reveal a client's whereabouts learned in confidence?

Plain-English summary

A lawyer subpoenaed to testify before a grand jury asked whether he could refuse to reveal his client's whereabouts, learned from the client in confidence. The committee explained that the duty to preserve confidences against compelled testimony is narrower than the broad ethical duty under DR 4-101(A) and (B): testimonial disclosure is governed primarily by the law of evidentiary privilege. Information is protected from compelled disclosure only if it falls within the attorney-client or another applicable evidentiary privilege (citing CPLR 4503), even though the general ethical duty reaches substantially all information gained in the professional relationship (EC 4-4).

Where an evidentiary privilege protects information, the lawyer has an ethical duty under EC 4-4 to act to preserve the privilege and to assert it unless the client waives it, and the same is true where the lawyer is in good-faith doubt about whether the privilege applies. The committee found a client's whereabouts that the client asked be held inviolate falls within the duty to preserve secrets, so the lawyer clearly may refuse to divulge it when first asked without judicial compulsion.

The harder problem arises when a court rejects the privilege claim. DR 4-101(C) permits revealing confidences or secrets when required by law or court order, and DR 7-102(A)(3) bars knowingly failing to disclose what the law requires. The committee interpreted "required by law to reveal" to apply only to court orders not subject to further review; it concluded a lawyer need not immediately comply with an order subject to reversal or modification on appeal, even at the risk of contempt, and where the order is open to good-faith challenge the lawyer may postpone testimony pending appropriate review. It found this consistent with Maness v. Meyers, which recognized that an appellate court cannot always "unring the bell" once information is released. The question was answered in the affirmative, provided a good-faith claim of privilege is raised and pending timely exhaustion of available review.

Currency note

This opinion was issued in 1981, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (confidentiality now appears at Rule 1.6 and fairness obligations at Rule 3.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer refuse to tell a grand jury where a client is?

A: When first asked without judicial compulsion, yes; the committee held a client's whereabouts the client asked be kept inviolate falls within the duty to preserve secrets.

Q: What if the court rejects the privilege claim and orders testimony?

A: The committee read "required by law to reveal" to mean court orders not subject to further review, so where the order is open to good-faith challenge the lawyer may postpone testimony pending timely appellate review, even at the risk of contempt.

Q: Does the ethical duty turn on the evidentiary privilege?

A: For compelled testimony, largely yes. The committee explained that testimonial disclosure is governed primarily by the law of privilege, even though the general ethical duty of confidentiality is broader.

Background and rules framework

The opinion applied Canon 4 and DR 4-101 (confidences and secrets), DR 4-101(C) (disclosure required by law or court order), and DR 7-102(A)(3), under EC 4-1, EC 4-2, and EC 4-4, to a lawyer subpoenaed to testify. The closest current Model Rule analogues are Rule 1.6 (confidentiality) and Rule 3.4 (fairness to opposing party and counsel).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality)
• MR 3.4 (fairness; obedience to obligations of a tribunal)
• NY Canon 4, EC 4-1, EC 4-2, EC 4-4, DR 2-109(A)(2), DR 4-101(A)-(C), DR 7-102(A)(2), DR 7-102(A)(3)

Statutes:

• CPLR 4503 (attorney-client privilege)

Cases:

• Maness v. Meyers, 419 U.S. 449 (1975), pre-compliance review of disclosure orders

See also

• NY State Bar Op. 530: Turning over physical evidence held for a client
• NY State Bar Op. 525: A prospective client's confidences and a resulting conflict
• NY State Bar Op. 529: Representing a fugitive client who refuses to surrender

Source

• Landing page: https://nysba.org/opinion-528/