My former divorce client's ex-husband subpoenaed me to testify and produce records about an inconsistency between the final decree and the judge's order on the marital home. My former client hasn't waived privilege. What can I properly disclose?

Plain-English summary

The attorney had represented a woman, Mrs. X, in her divorce; the matter concluded with a final decree entered, and the attorney no longer represents her. He recently learned of an inconsistency between the final decree and the transcript of the judge's order regarding the disposition of the marital domicile. He was served with a subpoena duces tecum, issued by Mrs. X's former husband, requiring him to bring all pertinent records and testify before the Family Court about the divorce proceeding. Mrs. X has not waived the attorney-client privilege. The attorney asked the panel what testimony, if any, it is proper for him to give.

The panel quoted Rule 1.6, barring a lawyer from revealing information relating to representation of a client absent the client's consent after consultation, and its comment explaining that the confidentiality rule applies not merely to matters the client communicated in confidence but to all information relating to the representation regardless of source; that a lawyer called to testify concerning a client must, absent waiver, invoke the privilege where applicable, while complying with a court's final order requiring the lawyer to give information about the client; and that the duty of confidentiality continues after the client-lawyer relationship has terminated. The panel held that, absent either a court order or the express consent of the former client, Mrs. X, the attorney may not testify as to any confidential matters covered by Rule 1.6, and, absent a court order or the former client's consent, may not reveal any of the contents of his client file except documents previously filed in connection with the case, which are therefore no longer privileged.

Currency note

This opinion was issued in June 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Can a former client's ex-spouse subpoena me to testify about confidential matters from that representation?

A: The subpoena alone does not authorize disclosure. The panel held that absent either a court order or the former client's express consent, the attorney may not testify as to any confidential matters covered by Rule 1.6.

Q: Does my duty of confidentiality end when the representation is over?

A: No. The opinion quotes Rule 1.6's comment stating the duty of confidentiality continues after the client-lawyer relationship has terminated.

Q: What can I disclose from my file if I'm subpoenaed and my former client hasn't consented?

A: Per the opinion, absent a court order or the former client's consent, the attorney may not reveal any of the client file's contents except documents previously filed in connection with the case, which are no longer privileged.

Q: What if a court orders me to testify?

A: The opinion's quoted comment to Rule 1.6 states the lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

Background and rules framework

The opinion applies Rule 1.6 of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, governing confidentiality of client information, including its post-termination duration and the court-order exception, to an inquiry about testifying and producing records under subpoena regarding a former divorce client.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• RI RPC 1.6(a), as adopted November 15, 1988

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 90-19: Expert IDs Are Work Product

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2090-27.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #90-27, REQUEST #104
Issued June 25, 1990

An attorney seeks Panel advice as to whether he can properly testify as to certain matters under the circumstances he describes.

The attorney advises the Panel that he represented a woman, Mrs. X, in connection with her divorce. The attorney states that the matter has been concluded, the final decree entered and that he no longer represents Mrs. X. The attorney indicates that he has recently learned that an inconsistency between the final decree and the transcript of the judge's order has been discovered with regard to the disposition of the marital domicile. The attorney states that he has been served with a subpoena duces tecum, issued by Mrs. X's former husband, requiring him to bring all pertinent records and to testify before the Family Court regarding the divorce proceeding. The attorney advises the Panel that Mrs. X has not waived the attorney-client privilege. He asks the Panel what testimony, if any, it is proper for him to give.

Rule 1.6, titled "Confidentiality of Information" provides, in pertinent part:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation.

The comment thereto provides, in pertinent part:

The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.

If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

The duty of confidentiality continues after the client-lawyer relationship has terminated.

The Panel takes the position that absent either a court order or the express consent of the former client, Mrs. X, the attorney may not testify as to any confidential matters covered by Rule 1.6. Absent a court order or the former client's consent the attorney may not reveal any of the contents of his client file except those documents which have been previously filed in connection with the case, and therefore are no longer privileged.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.