What should a Michigan judge do when asked to disclose privileged information about a client the judge represented before taking the bench?

Plain-English summary

Before taking the bench, a judge had been the lawyer for the personal representative of an estate. That personal representative was now being sued by another estate for misappropriation, and the plaintiff's lawyer asked the judge to disclose any information the judge had about amounts the judge's former client received from the estate. The judge had not yet checked the file and asked about the authority to release the information if it existed.

The opinion noted it did not know whether the former client was still living, but that the attorney-client privilege continues after the client's death (citing Eicholtz v. Grunewald) and may not be waived by the lawyer. While what constitutes privileged information is a question of law outside the committee's jurisdiction, the opinion concluded the procedures for responding to such requests are the same for judges as for lawyers.

The opinion concluded that a lawyer (and equally a judge) asked to produce information covered by the attorney-client privilege or containing confidences and secrets within MRPC 1.6, where the client does not consent, must await a subpoena, exercise the attorney-client privilege, and await the presiding judge's instruction on whether to release the information. It observed that this procedure is consistent with a judge's duty under MCJC 2C not to appear as a witness unless subpoenaed.

Currency note

This opinion was issued in 1990, before Michigan's 2002 adoption of the Ethics 2000 revisions to its Rules of Professional Conduct, and it interprets the Michigan Code of Judicial Conduct as it then stood. The cited Rules of Professional Conduct and Code of Judicial Conduct have been amended since. Treat this page as historical context, not current guidance. Verify against the current Rules of Professional Conduct and Code of Judicial Conduct before relying on any specific rule or procedure mentioned here.

Common questions

Q: Can a former client's privilege be waived by the lawyer who became a judge?

A: No. The opinion concluded the attorney-client privilege belongs to the client, continues after the client's death, and may not be waived by the lawyer.

Q: What procedure should the judge follow when asked for the information?

A: The opinion concluded the judge must await a subpoena, appear to exercise the attorney-client privilege, and await the presiding judge's instruction on whether to release the information.

Q: Does the Code of Judicial Conduct support this approach?

A: The opinion concluded the procedure is consistent with MCJC 2C, under which a judge should not appear as a witness unless subpoenaed.

Background and rules framework

The opinion interpreted MRPC 1.6 (Michigan's analogue to Model Rule 1.6, confidentiality of information) and MCJC 2C of the Michigan Code of Judicial Conduct. It relied on prior committee opinions CI-389, CI-550, CI-665, CI-702, CI-1103, and CI-1188, and on Michigan case law on the survival of the privilege.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / MRPC 1.6 (confidentiality of information)

Code of Judicial Conduct (as cited):

• MCJC 2C (a judge should not appear as a witness unless subpoenaed)

Cases:

• Eicholtz v. Grunewald, 313 Mich. 666 (1946), attorney-client privilege survives the client's death

Other opinions cited:

• Michigan CI-389, CI-550, CI-665, CI-702, CI-1103, CI-1188: procedure for responding to demands for privileged information

See also

• Mich Judicial Ethics Op. JI-6: disqualification when a lawyer-tenant appears before a landlord-judge
• Mich Judicial Ethics Op. JI-29: judge appointing a private practitioner as referee and liaison attorney

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=741&Type=6

Original opinion text

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

JI-32

December 8, 1990

SYLLABUS

A judge who is asked for privileged information concerning a former client with regard to which the client does not consent to disclosure, must await a subpoena, appear in court to exercise the attorney-client privilege, and await the presiding judge's instruction on whether to release the information.

References: MRPC 1.6; CI-389, CI-550, CI-665, CI-702, CI-1103, CI-1188; Eicholtz v. Grunewald, 313 Mich 666 (1946).

TEXT

Prior to assuming the bench, a judge was the lawyer for the personal representative of an estate. The personal representative is now being sued by the estate of another brother for misappropriation of funds while acting as personal representative. The plaintiff's lawyer in the misappropriation action has asked the judge to disclose any information in the judge's possession concerning amounts received by the judge's client from the estate. The judge has not checked the file to determine whether any such information is present, but seeks advice on the authority to release the information if it exists.

We do not know in this inquiry whether the judge's former client is still living, but the attorney-client privilege continues even after the death of the client, Eicholtz v. Grunewald, 313 Mich 666 (1946), and may not be waived by the lawyer. In prior opinions we have discussed a lawyer's duty when asked to disclose information protected by attorney-client privilege. Although what constitutes privileged information is a question of law and beyond the scope of the Committee's jurisdiction, the procedures for responding to such requests are the same for judges as for lawyers.

A lawyer who is asked to produce information which is covered by attorney-client privilege or which contains confidences and secrets within MRPC 1.6, and with regard to which the client does not consent to disclosure, must await a subpoena, exercise the attorney-client privilege, and await the presiding judge's instruction on whether to release the information. CI-389, CI-550, CI-665, CI-702, CI-1103, CI-1188. This procedure is consistent with a judge's duties under MCJC 2C not to appear as a witness unless subpoenaed.