When a former client subpoenas the lawyer to testify about advice given, can the lawyer reveal it to defend the competence of that advice?

Plain-English summary

A Florida lawyer had represented a client in a criminal matter in which the client pled guilty and was later challenging the sentence. The lawyer was subpoenaed to testify about the advice he gave the client and asked about the ethical considerations of answering the questions under subpoena.

The committee recognized that the question was, in part, one of law for the court before which the lawyer was subpoenaed. It advised that if the lawyer believes the matter falls within the attorney-client privilege, he should raise it and abide by the court's decision. The committee then addressed the situation under DR 4-101(C) and (D): if the court rules that the answers are required, the lawyer must be permitted to testify to avoid a possible fraud on the court. Where the client has challenged the sentence by claiming it was not explained to him, and the lawyer knows what explanations were given, the lawyer must be in a position to defend himself as to having given competent advice; from that standpoint, the committee said, the privilege would not apply in the first instance.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied DR 4-101(C) and (D) of the former Code of Professional Responsibility; confidentiality, including the self-defense exception, is now addressed by Rule 4-1.6. Treat this page as historical context, not current guidance. Verify against the current rules and the evidentiary privilege before relying on any specific requirement mentioned here.

Common questions

Q: Should a lawyer subpoenaed about a client's advice just answer?

A: Under this opinion, the lawyer should first raise the attorney-client privilege if he believes the testimony falls within it, and abide by the court's ruling.

Q: Can the lawyer testify if the client says the advice was deficient?

A: The committee held that once the client challenges the advice (here, claiming the sentence was not explained), the lawyer must be able to testify to defend the competence of his advice, and from that standpoint the privilege would not apply.

Background and rules framework

The opinion applied DR 4-101(C) and (D) of the former Code of Professional Responsibility, which addressed when a lawyer may reveal client confidences, including to defend against an accusation. Confidentiality and the self-defense exception are now addressed by Rule 4-1.6 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.6.

Citations and references

Rules of Professional Conduct:

• DR 4-101(C), (D) [Code of Professional Responsibility; confidentiality now in Rule 4-1.6]

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-40/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-40-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-40
November 16, 1970
Advisory ethics opinions are not binding.
On subpoena before the court to testify as to advice given a client, an attorney should raise the attorney-client privilege if he believes the testimony would fall within it. However, the attorney must be able to defend himself if the client places into question the competency of the advice.
CPR: DR 4-101(C)(D)
Chairman Massey stated the opinion of the committee:
A member of The Florida Bar represented a client in a criminal matter. The client pled guilty and now challenges the sentence which could be imposed. The attorney has been subpoenaed to testify as to the advice given the client and inquires as to the ethical considerations of responding to questions posed to him while under subpoena before the court.
The Committee recognizes that the question, in part, may be one of law for the court before whom the attorney is subpoenaed. Assuming the attorney believes the matter falls within the attorney-client privilege, he should raise it and abide by the court's decision.
However, the question is further answered within the purview of CPR DR 4-101(C) and (D) in that the attorney, assuming the court regards answers to the questions to be required, must be permitted to testify to avoid the possibility of a perpetration of a fraud on the court. When the client has challenged a sentence claiming the same not to have been explained to him and his attorney is aware of what explanations, if any, were given, the attorney additionally must be in a position to defend himself as to competent advice having been given as well. From this latter point of view, the attorney-client privilege would not apply in the first instance.