If a district attorney says he will call the defense attorney as a witness about a client's statements, can the attorney keep representing the client?
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This page answers the general question as of 1984. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Currency note
This opinion was issued in 1984, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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.
Plain-English summary
An attorney representing a client indicted for felonious possession of controlled substances inspected the seized drugs with his client before trial. During a private consultation in the evidence room, the client asked whether there would be a case against him if the drugs were destroyed; the attorney assured him the State could still prove its case through the testimony of the officers who recovered and examined the drugs. After leaving the evidence room, the client was searched in his jail cell and found with a package of capsules, and the authorities notified the attorney of the search before he left the building.
When the attorney later met with the district attorney about a plea agreement, the district attorney said he intended to call the attorney as a witness to the fact that the attorney and client had examined the drugs and that a later search turned up capsules in the client's possession; the attorney responded by telling the district attorney about the client's earlier inquiry whether destroying the drugs would defeat the case. During pretrial motions, the district attorney filed a motion to introduce evidence that the client concealed and carried away capsules after indictment, again stating an intent to call the attorney as a witness, and the attorney again disclosed the client's inquiry, this time to the court.
The opinion held that "the existence of the attorney-client privilege with respect to the communication in question, considering the surrounding circumstances and subsequent developments, is a matter of law, not ethics, and is subject to judicial determination." It then set out a conditional rule for continued representation: "[i]n the event the court determines that the statements by the client to the attorney are subject to privilege, then the attorney may proceed with representation of the client," but "[i]n the event the court determines that the statements are not subject to privilege, then the attorney is prohibited from continuing to represent the client as it appears that the testimony may be prejudicial to the client," citing Disciplinary Rule 5-102(B).
Common questions
Q: Will the Board decide whether a client's statement to counsel is privileged?
A: No. The opinion holds that "the existence of the attorney-client privilege with respect to the communication in question... is a matter of law, not ethics, and is subject to judicial determination."
Q: Can the attorney keep representing the client if the court rules the statement privileged?
A: Yes. "In the event the court determines that the statements by the client to the attorney are subject to privilege, then the attorney may proceed with representation of the client."
Q: What happens if the court rules the statement is not privileged?
A: Then "the attorney is prohibited from continuing to represent the client as it appears that the testimony may be prejudicial to the client," under Disciplinary Rule 5-102(B).
Background and rules framework
The opinion turns on the judicial determination of attorney-client privilege and applies Disciplinary Rule 5-102(B), which barred continued representation where the lawyer's likely testimony would be prejudicial to the client. The modern correlates are Model Rule 3.7 (lawyer as witness) and Model Rule 1.6 (confidentiality, the rule underlying the attorney-client privilege analysis), cited here as navigational cross-references rather than rules the opinion itself applied.
Citations and references
(No cases or other Tennessee opinions are cited in the opinion text.)
See also
Source
- Landing page: https://www.tbpr.org/ethic_opinions/84-f-66
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
84-F-66 - Attorney-Client Privilege
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
FORMAL ETHICS OPINION 84-F-66
Inquiry is made as to whether statements made in confidence by a client to his attorney and later revealed to the district attorney, and also to the court, are now subject to attorney-client privilege; and, the propriety of continuing to represent the client after the district attorney states an intention to call the attorney to testify concerning the statements.
The attorney represented a client indicted on various offenses of felonious possession of controlled substances. Prior to the trial, the attorney and his client were allowed to inspect the drugs and substances confiscated from the client's vehicle. During the inspection, the attorney and client consulted privately and the client inquired if there would be a case against him if the drugs were destroyed. The attorney assured the client the State could present a case without the drugs by the testimony of witnesses who recovered and examined the drugs. After the attorney and client left the evidence room, the client was returned to his jail cell and searched. The search revealed a package containing several capsules. The authorities notified the attorney of the search and results as he was leaving the premises.
The attorney later met with the district attorney to discuss a possible plea bargain agreement. The district attorney stated an intention to call the attorney as a witness to the facts that the attorney and client had examined the drugs and a subsequent search revealed the client had possession of several capsules. In response, the attorney informed the district attorney about the client's inquiry if there would be a case if the drugs were destroyed.
Later, during pre-trial motions, the district attorney filed a motion of intent to introduce evidence to show that after indictment and during discovery, the defendant concealed and carried away certain capsules. The district attorney stated to the court an intention to call the attorney as a witness to the incident. The attorney, in response, informed the court about the client's inquiry if there would be a case if the drugs were destroyed.
The attorney now inquires if the statements by the client are subject to attorney-client privilege; and, the propriety of continuing to represent the client.
The existence of the attorney-client privilege with respect to the communication in question, considering the surrounding circumstances and subsequent developments, is a matter of law, not ethics, and is subject to judicial determination.
In the event the court determines that the statements by the client to the attorney are subject to privilege, then the attorney may proceed with representation of the client. In the event the court determines that the statements are not subject to privilege, then the attorney is prohibited from continuing to represent the client as it appears that the testimony may be prejudicial to the client. See Disciplinary Rule 5-102(B).
This 31st day of January, 1984.
ETHICS COMMITTEE:
G. Wilson Horde
T. Maxfield Bahner
APPROVED AND ADOPTED BY THE BOARD
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