What must a lawyer do when subpoenaed to testify about a client's whereabouts in family court?

Plain-English summary

A lawyer was subpoenaed to testify in family court about the whereabouts of his client. The committee was asked what the lawyer's responsibilities were.

The committee noted the question also involves evidentiary-privilege issues of substantive law it generally does not decide, but addressed the ethical side. Relying on its Opinion 90-14, it explained that a client's identity and the amount of work done are "information relating to representation of a client" under Rule 1.6(a) and may not be voluntarily revealed to third parties without the client's consent after consultation, except where Rule 1.6 otherwise permits; it followed that a client's address is likewise protected, and a lawyer could face discipline for voluntarily disclosing it. If called as a witness, absent the client's waiver, the lawyer must invoke the attorney-client privilege where applicable. The committee expressed no opinion on whether the privilege actually attached, but noted (citing McDonald v. Berry) that the South Carolina Supreme Court has held a client's address is generally privileged when given to the attorney in confidence. If the court orders disclosure, the Rule 1.6 comment provides that a lawyer must comply with a competent tribunal's final order to give information about the client, and the committee read that to mean disclosure under a valid court order does not violate the rules.

Currency note

This opinion was issued in 1994, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 the lawyer voluntarily tell the court the client's address?

A: The committee concluded the lawyer should not voluntarily reveal it. A client's address is information relating to the representation under Rule 1.6, so disclosing it without consent could subject the lawyer to discipline.

Q: What must the lawyer do on the witness stand?

A: Absent the client's waiver, the lawyer must invoke the attorney-client privilege where it applies; the committee did not decide whether it applied here.

Q: What if the court orders the lawyer to disclose anyway?

A: The committee, following the Rule 1.6 comment and its Opinion 90-14, said a lawyer does not violate the rules by disclosing pursuant to a valid court order.

Background and rules framework

The opinion applied Rule 1.6 (confidentiality of information), treating a client's address as protected "information relating to representation," and relied on the Rule 1.6 comment regarding compliance with court orders. It drew on the committee's Opinion 90-14 and ABA Informal Opinion 1287, and noted the privilege holding in McDonald v. Berry. The South Carolina rule corresponds to like-numbered Model Rule 1.6.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality of information (Rule 1.6(a) and the comment on complying with court orders).

Cases:

• McDonald v. Berry, 243 S.C. 453, 134 S.E.2d 392 (1964), a client's address given in confidence is generally privileged.

Other opinions cited:

• SC Bar Adv. Op. 90-14: client identity and work are protected information relating to the representation.
• ABA Informal Op. 1287 (1974): client name, address, and telephone number are "secrets."

See also

• SC Bar Ethics Op. 94-23: Self-Defense Disclosure Before an Agency
• SC Bar Ethics Op. 94-11: Collecting Unpaid Legal Fees
• SC Bar Ethics Op. 94-24: Disclosure in a Termination Appeal

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-30/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 94-30

What are the responsibilities of an attorney subpoenaed to testify in family court regarding the whereabouts of his client?

Summary:
Although the question asked involves matters of substantive law regarding evidentiary privileges which generally are not considered by this Committee, there are important ethical issues in this question which need to be addressed. Generally, a client's address communicated in confidence to the attorney is information that should not be voluntarily revealed to third parties unless the client first consents to the disclosure after full discussion and explanation of the circumstances surrounding the disclosure. If the lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, the lawyer is required to invoke the attorney-client privilege when applicable. If the court finds the privilege inapplicable, the attorney may ethically comply with the court's order and disclose the client's whereabouts.

Opinion:
In Advisory Opinion No. 90-14, this Committee indicated that the identity of a client and the amount of work which the attorney does for the client may not be voluntarily revealed to third parties by the attorney without first obtaining the client's consent to disclosure after full explanation of the circumstances regarding the disclosure. This Committee cited ABA Informal Opinion No. 1287 (June 7, 1974) for the proposition that a client's name, address and telephone number are considered secrets within the meaning of D.R. 4- 101(A) of the prior ABA Model Code of Professional Responsibility.

In Opinion No. 90-14, this Committee expressly found that the identity of a client and the amount of work done for the client constitute "information relating to representation of a client" under Rule 1.6(a) of the Rules of Professional Conduct. Accordingly, this information is not to be disclosed by the lawyer to third parties unless the client consents after consultation except where disclosure is otherwise permitted under Rule 1.6. It logically follows that a client's address is also "information relating to representation of a client," such that the lawyer may be subject to discipline for voluntarily disclosing the client's address to third parties.

The committee offers no opinion as to whether the information would be subject to the evidentiary attorney-client privilege.1 If the court orders disclosure, the Committee notes that the official Comment to rule 1.6 provides that, "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." As this Committee stated in Advisory Opinion 90-14, "We read this Comment to mean that a lawyer does not violate the Rules by disclosing such information pursuant to a valid court order." 1 Although it is not the responsibility of this committee to advance opinions on issues involving substantive law such as the attorney-client privilege, the committee does note that the South Carolina Supreme Court has held that a client's address is generally protected by the attorney-client privilege when the address is given to the attorney in confidence. McDonald v. Berry, 243 S. C. 453, 134 S. E. 2d 392 (1964).