Can a lawyer give an affidavit about a former joint client's statements to help co-counsel collect a fee from that client?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
L-1 represented a wife in a specific-performance action and her husband in business matters; L-2 assisted L-1 in the retrial and appeal of the wife's case. At a closing, L-2 was paid out of the proceeds but L-1 was not, and L-1 then sued for his fees. L-1's lawyer asked L-2 for an affidavit about admissions the couple had made about the amount owed to L-1. L-2 asked whether the Disciplinary Rules barred him from voluntarily disclosing those admissions.
The committee held that the admission was information gained in the professional relationship whose disclosure would be detrimental to the wife, making it a secret under DR 4-101(A). Even the husband's statement was the wife's secret, because it described a lump sum owed to L-1 for both representations without a breakdown. The committee acknowledged that, because L-1 had brought L-2 into the case with the wife's consent, the normal assumption was that the two lawyers would share the client's information (citing EC 4-2), so at the time L-2 received the admission it would not have violated the wife's secret for him to pass it to L-1.
That assumption changed once L-2 learned of the fee litigation. The committee concluded that at the moment an affidavit was sought, L-2 knew enough that the normal sharing assumption had disappeared, and he should not voluntarily reveal the information to L-1 without the client's consent, since none of the DR 4-101 exceptions applied short of a court order. Separately, if L-2 had already told L-1 all the details, the committee held that embodying them in an affidavit for use against the client would violate DR 7-101(A)(3), which forbids intentionally prejudicing or damaging one's client. The committee added that whether L-2 could be compelled to testify turned on the attorney-client privilege, a question for the court, not the committee.
Currency note
This opinion was issued in 1993, before Massachusetts's adoption of the 2015 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 Treat this page as historical context, not current guidance.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 a lawyer voluntarily give an affidavit to help co-counsel collect a fee from a shared client?
A: Under this opinion, no. The committee concluded that, once L-2 knew of the fee dispute, voluntarily disclosing the client's statements (including by affidavit) would breach the client's secret under DR 4-101 absent consent or a court order.
Q: Was the husband's statement protected even though the lawyer represented only the wife?
A: Yes. The committee held that the husband's statement about the lump sum owed to L-1 for both representations was a secret of the wife, because it was not broken down by representation and its disclosure would be detrimental to her.
Q: Could the lawyer be forced to testify anyway?
A: The committee said that was a separate evidentiary question. Whether L-2 could be compelled to testify depended on the attorney-client privilege, which the court in L-1's fee litigation would decide; the committee addressed only the ethical duty.
Background and rules framework
The opinion applied DR 4-101 (preservation of client confidences and secrets), corresponding to Model Rule 1.6, and DR 7-101(A)(3) (a lawyer shall not intentionally prejudice or damage the client during the representation), a duty of loyalty and diligence reflected in Model Rule 1.3. The committee also relied on Ethical Consideration 4-2 (sharing of client information among associated lawyers).
Citations and references
Rules of Professional Conduct:
- Model Rule 1.6 / DR 4-101 (confidences and secrets)
- Model Rule 1.3 / DR 7-101(A)(3) (not intentionally prejudicing or damaging a client)
See also
- MA Bar Ethics Op. 94-7: Client identity and an IRS summons
- MA Bar Ethics Op. 96-1: Suing trial co-counsel for malpractice
Source
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