After being dismissed from a suit, must a lawyer still keep a former client's confidences when other defendants want her testimony?

Plain-English summary

Attorney A represented Client X on a probate matter about eight years earlier. Client X later sued Attorney A and other attorneys; after Attorney A denied all the allegations, Client X dismissed her with prejudice. The remaining attorney-defendants wanted Attorney A to provide an affidavit or deposition about her conversations with Client X during the representation. The question was whether the attorney-client privilege continued despite the dismissal with prejudice.

The committee concluded it did. Under Rule 1.6, a lawyer shall not reveal information relating to the representation, subject only to the two limited exceptions in Rule 1.6(b): to prevent the client's criminal act, or to establish a claim or defense for the lawyer in a controversy with the client or to respond to allegations about the lawyer's representation. The Comment provides that when a lawyer is called to testify about a client without the client's waiver, the lawyer must invoke the privilege where applicable, and that the duty of confidentiality continues after the relationship has terminated.

The committee found neither exception applicable: there was no suggestion of criminal activity, and because Client X had dismissed Attorney A with prejudice, there was no longer any controversy between them or any need for Attorney A to establish a defense or respond to allegations about her representation. Accordingly, Attorney A had a duty to keep her communications with Client X confidential and, whether or not called to give third-party affidavits or depositions, must assert the attorney-client privilege, which continues after the relationship has terminated.

Currency note

This opinion was issued in 1998, 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 Treat this page as historical context, not current guidance.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: Does confidentiality end when the lawyer is dismissed from a lawsuit?

A: The committee concluded no: the duty of confidentiality and the privilege continue after the attorney-client relationship has terminated.

Q: Could the lawyer testify because she had been sued by the client?

A: The committee concluded the self-defense exception in Rule 1.6(b) did not apply, because the dismissal with prejudice left no controversy and no need for the lawyer to defend her representation.

Q: What must the lawyer do when co-defendants seek her testimony?

A: The committee concluded she must assert the attorney-client privilege and may disclose the information only by order of the court.

Background and rules framework

The opinion interpreted South Carolina RPC 1.6 (confidentiality of information, including the 1.6(b) exceptions for preventing a client's crime and for the lawyer's self-defense), corresponding to Model Rule 1.6, and its Comment that the duty continues after the relationship ends and that the lawyer must invoke the privilege when called to testify absent waiver.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.6 / Model Rule 1.6: confidentiality; exceptions in 1.6(b).

See also

• SC Bar Ethics Op. 98-23: IRS Request for Client Files
• SC Bar Ethics Op. 98-22: Switching Sides Against a Client

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-98-30/

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 98-30

Attorney A represented Client X on a probate matter roughly eight years ago. Later, Client X sued Attorney A and other attorneys. After denying all the allegations, Attorney A was dismissed with prejudice by Client X.
The remaining attorneys want Attorney A to provide an affidavit and/or deposition as to the conversations between Attorney A and her former client, Client X, which occurred during the course of Attorney A's representation of Client X.

QUESTION:
Although Attorney A was dismissed with prejudice from the lawsuit, does the attorney-client privilege continue to remain in effect regarding the communications between Attorney A and Client?

SUMMARY:
The attorney-client privilege continues after the attorney-client relationship has terminated. Therefore, in response to the third party's request for affidavits and/or depositions, Attorney A must assert the attorney-client privilege and may only disclose such information by order of the court.

OPINION:
Under Rule 1.6 of the Rules of Professional Conduct, a lawyer shall not reveal information relating to representation of a client This prohibition is subject to two very limited exceptions set forth in Rule 1.6(b):
(1) To prevent the client from committing a criminal act; or
(2) To establish a claim or defense on behalf of a lawyer in a controversy between the lawyer and client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

The Comment to the Rule provides that if a lawyer is called to give testimony concerning his/her client absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. "The Comment specifically states that the lawyer's A duty of confidentiality continues after the client-lawyer relationship has terminated."

Neither exception found in paragraph (b) is applicable to the factual situation presented. First, there is no suggestion of criminal activities. Second, since Client X has dismissed Attorney A with prejudice, there is no longer any controversy between Attorney A and Client X or need on Attorney A's part to establish a defense or respond to allegations concerning her representation of Client X.

Attorney A has the duty to keep communications between herself and Client X confidential. Regardless of whether called to give third part affidavits and/or depositions, Attorney A must assert the attorney-client privilege since it continues after the attorney-client relationship has terminated.