After a joint representation ends, can a lawyer reveal what one former co-client told him, and may the lawyer testify when that co-client later commits perjury against the other client?

Plain-English summary

A lawyer (A) jointly represented a client (C) and C's business associate (X) in a tax-fraud investigation. After A's investigators concluded X's account was not believable, A advised X to get his own lawyer; X retained counsel (Y). At a later meeting of both lawyers and both clients, X gave an altered version of the facts that incriminated himself and exonerated C. X was then indicted, plea-bargained to testify against C, and refused to waive privilege as to his earlier representation by A. C's new trial counsel asked whether A could disclose, and later testify to, the differing versions X had given.

The Committee framed the analysis around the distinction between the lawyer's continuing ethical duty to preserve confidences and secrets under Canon 4 and DR 4-101 and the narrower evidentiary attorney-client privilege, noting under EC 4-4 that the ethical duty exists regardless of the source of the information or that others may share it. On the first two versions, the ones X gave to A and to A's investigators during the joint representation, the Committee answered no: those came during the attorney-client relationship, and the duty to preserve a client's confidences and secrets continues even after discharge (EC 4-6). On the third version, the one X gave at the later meeting, the Committee answered yes: by then X was represented by Y, not A, so there was no existing attorney-client relationship between A and X when X spoke.

As to whether new counsel could compel A's testimony, the Committee said that question is governed by Federal Rule of Evidence 501 and lies beyond its jurisdiction. On whether A could testify at C's trial about X's inconsistent testimony, the Committee concluded that A could, subject to the court's evidentiary ruling under Rule 501. It reasoned that on these facts X's trial testimony would be so clearly perjured that DR 7-102(B) would require the lawyer to disclose the fraud, so A would be ethically permitted to testify to it if called.

Currency note

This opinion was issued in 1977, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Confidentiality is now governed by Texas Rule 1.05 and duties to a former client by Texas Rule 1.09, while the lawyer's duty when a client offers false evidence is now addressed by Texas Rule 3.03; the ABA analogs are Model Rules 1.6, 1.9, and 3.3. The treatment of a lawyer's duty on client or witness perjury has changed materially since this opinion. 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: Could the lawyer reveal what the co-client told him during the joint representation?

A: No. The Committee concluded that the first two versions X gave to A and A's investigators came during the attorney-client relationship, and the duty to preserve a client's confidences and secrets continues even after discharge, so A could not disclose them.

Q: Why could the lawyer disclose the third version?

A: The Committee said X gave the third version at a meeting after he had retained his own lawyer, so there was no existing attorney-client relationship between A and X at that time, which is why A could ethically disclose it.

Q: Could the lawyer testify when the co-client gave perjured testimony at trial?

A: Per the opinion, yes, subject to the court's ruling under Federal Rule of Evidence 501. The Committee concluded that X's trial testimony would be so clearly perjured that DR 7-102(B) would require disclosure of the fraud, so A could ethically testify to it.

Q: Did the Committee decide whether new counsel could compel the lawyer's testimony?

A: No. The Committee said that question is governed by Federal Rule of Evidence 501 and is beyond its jurisdiction.

Background and rules framework

The opinion interprets Canon 4 and DR 4-101 of the former Texas Code of Professional Responsibility, which require a lawyer to preserve a client's confidences and secrets, alongside DR 7-102(B), which required a lawyer who received information clearly establishing a fraud on a tribunal to call on the client to rectify it and, failing that, to reveal it. The Committee distinguished the ethical confidentiality duty (EC 4-4, EC 4-6) from the evidentiary privilege and treated the existence of an attorney-client relationship at the time of the statement as the dividing line. The modern analogs are Texas Rules 1.05, 1.09, and 3.03, with ABA Model Rules 1.6, 1.9, and 3.3.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality); MR 1.9 (duties to former clients); MR 3.3 (candor toward the tribunal, including false evidence), as the modern analogs
• Canon 4, DR 4-101, DR 7-102(B), EC 4-4, EC 4-6 (former Texas Code of Professional Responsibility)

Statutes and rules:

• Federal Rule of Evidence 501 (privilege; the Committee deemed the compulsion question governed by this rule and beyond its jurisdiction)

See also

• TX Ethics Op. 482: Hostile Co-Defendant Confidences and Withdrawal From Joint Defense
• TX Ethics Op. 480: Duty to Disclose Concealed Trust to Bankruptcy Court
• TX Ethics Op. 473: Appointed Counsel's Duty to Disclose Client Indigency Fraud

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-389/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_389.pdf

Original opinion text

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

QUESTION PRESENTED

Disciplinary Rule 4-101 Disciplinary Rule 7-102

May A disclose to new counsel, prior to trial, any one or more of the following items: (a) first version of the facts as told to A by X? (b) the second version of the facts as told by X to A's investigators? (c) the third version of the facts as told during the conference of A, C, X and Y?

If X testified in a manner inconsistent with previous versions, may new counsel require testimony of A and/or the investigator on the matters stated above?

May A testify as to such inconsistency as may exist following the testimony of X, during the trial of C?

STATEMENT OF FACTS

Attorney (A) represents client (C) in a variety of legal matters. C and his business associate (X) are investigated for tax fraud concerning a business operated by C and X. C and X jointly consult A for legal advice and X is advised by A to employ his own attorney. X is satisfied to have A jointly represent C and X. A thereafter jointly represents C and X. Investigators employed by A conclude that X's version is not believable and A advises that X employ his own attorney. X then employs attorney (Y). Thereafter, both attorneys and both parties meet together and X gives an altered version of the facts which tends to incriminate X and exonerate C. Thereafter, C and X are indicted and X successfully plea bargains in exchange for testimony against C. C employs new counsel to represent him in trial. X will not waive the attorney/client or work product privilege with respect to his representation by A.

DISCUSSION

Critical to answering each of the above inquiries is the distinction between the ethical duty of an attorney to preserve confidence and secrets and the evidentiary rule of an attorney/client privilege.

Canon 4 commands:

"A Lawyer Should Preserve the Confidences and Secrets of a Client."

Disciplinary Rule 4-101 reads as follows: (a) "Confidence refers to information protected by the attorney/client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client. (b) Except when permitted under DR4-101(C), a lawyer should not knowingly: (a) revel a confidence or secret of his client; (b) use a confidence or secret of his client to the disadvantage of the client; (c) use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure. (c) A lawyer may reveal: . . . (a) confidences or secrets when permitted under Disciplinary Rules or required by law or court order." Ethical Consideration 4-4 accompanying Canon 4, states in part: "the attorney/client privilege is more limited than the ethical obligation of a lawyer to guard the confidence and secrets of his client. This ethical precept, unlike the evidentiary privilege exists without regard to the nature of source of information or the fact that others may share the knowledge." (emphasis added)

In the opinion of the Committee the first two parts of Question One (1) must be answered in the negative. Clearly all such discussions were related to A during the period when the attorney/client relationship existed. Even after discharge, the obligation to preserve the confidence and secrets of a client continues.

See: Ethical Consideration 4-6

With respect to Question 1(c) we believe attorney A could ethically disclose the statements of X inasmuch as X was no longer represented by A and thus there was no existing attorney/client relationship at the time of the discussions.

At the time of the meeting, X was represented by a new attorney who urged him to tell the altered version of the facts. As such, the discussions were made after termination of the original attorney/client relationship existing between A and X.

Question 2 inquires as to whether substituted counsel for A may require the testimony of A on the matters stated in interrogatory no. 2. This would appear to be governed by Federal Rule of Evidence 501 and is beyond the jurisdiction of this Committee.

The third inquiry is whether A may testify as to such inconsistent testimony by X during the trial of C. It is the opinion of this Committee that if A were called to testify by new counsel for C, and subject to the evidentiary ruling by the Court under Rule 501 of the Federal Rules of Evidence, the former attorney of C could ethically testify as to the inconsistent testimony of X. Under the facts as presented this Committee, the testimony of X at trial would be so clearly perjured that Disciplinary Rule 7-102(B) would require that it be disclosed. Such rule provides: "(b) A lawyer who received information clearly establishing that: (1) his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal."

The testimony would clearly establish an act of perjury and it would be the duty of the attorney to disclose it and certainly if called to testify, by new attorney, he would be ethically permitted to testify as to same.

Tex. Comm. On Professional Ethics, Op. 389 (1977)