Can a lawyer voluntarily testify or give an affidavit about a former client without being subpoenaed?

Plain-English summary

The opinion addresses when a lawyer may volunteer testimony, by live testimony or affidavit, about a former client, in settings like competency proceedings, matrimonial actions, partnership disputes, or contract disputes. The committee, applying the former New York Code, concludes there is no per se bar, but the duty of confidentiality controls what the lawyer may say.

The committee first clears away rules that do not apply. The Canon 5 conflict rules (DR 5-105, DR 5-108(A)(1)) and the lawyer-witness rule (DR 5-102) are framed in terms of current or prospective representation or employment, and giving testimony in a matter where the lawyer is not counsel is neither. What governs is DR 5-108(A)(2), which incorporates DR 4-101 and bars a lawyer from using a former client's confidences or secrets, whether by affidavit, trial testimony, or otherwise, unless the information has become generally known or a DR 4-101(C) exception applies.

The committee distinguishes "confidences" (privileged information) from "secrets," the broader category of information gained in the relationship that the client asked to keep private or whose disclosure would be embarrassing or detrimental. It explains that secrets differ from privileged information in three ways: they are protected regardless of source, the duty is a general confidentiality duty rather than only a shield against compelled disclosure, and the duty is not lost merely because others come to know the information (only when it becomes "generally known"). The DR 4-101(C) exceptions include client consent after full disclosure, disclosure required by law or court order, and the self-defense and fee exceptions.

Putting this together, the committee gives guidance. If the information is neither a confidence nor a secret, the lawyer may testify. If it is a confidence or secret and the lawyer is willing to testify, the lawyer should generally obtain the former client's informed consent first; absent consent or another exception, the lawyer should not voluntarily testify. If, while testifying, the lawyer is asked a question calling for protected information without consent, the lawyer should assert any non-frivolous objection or privilege; if the court overrules it, the lawyer may then answer without violating the Code.

In practice

The opinion was issued in 2005 under the former New York Code, which the New York Rules of Professional Conduct replaced effective April 1, 2009; the confidentiality and former-client duties map onto current Rules 1.6 and 1.9, and the lawyer-witness rule onto Rule 3.7. Under the framework as it stood at the time, the opinion holds that a lawyer deciding whether to volunteer testimony about a former client should first determine whether the testimony would reveal a confidence or secret, seek the former client's informed consent if it would, and, if pressed for protected information without consent, assert any applicable objection or privilege before answering.

Common questions

Q: Can a lawyer give an affidavit about a former client voluntarily?

A: Yes, where the testimony reveals no confidence or secret. If it would, the opinion says the lawyer should obtain the former client's informed consent first.

Q: Does the duty end because the case is over or the information leaked out?

A: No. The opinion explains the confidentiality duty survives the representation and is not lost merely because others learn the information; it ends only when a secret becomes "generally known."

Q: What if a court orders the lawyer to answer?

A: The opinion says a lawyer ordered or compelled to testify may answer without violating the Code, but should first assert any non-frivolous objection or privilege.

Q: Is a former client's confidence different from a "secret"?

A: Yes. A confidence is privileged information; a secret is broader, covering information the client asked to keep private or whose disclosure would be embarrassing or detrimental, protected regardless of its source.

Background and rules framework

The opinion interprets the former New York Code's confidentiality and former-client provisions, DR 4-101 (confidences and secrets, including the DR 4-101(C) exceptions) and DR 5-108(A)(2) (no use of a former client's confidences or secrets), with Ethical Considerations 4-4 and 4-6. These correspond to Model Rules 1.6 (confidentiality) and 1.9(c) (former-client information); the lawyer-witness analysis tracks Model Rule 3.7. It relies on Swidler & Berlin v. United States and Jamaica Public Service Co. v. AIU Insurance for the survival of the duty.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / NY DR 4-101 (confidences and secrets)
• MR 1.9(c) / NY DR 5-108(A)(2) (use of a former client's information)
• MR 3.7 / NY DR 5-102 (lawyer as witness)

Cases:

• Swidler & Berlin v. United States, 524 U.S. 399 (1998), privilege survives the client's death
• Jamaica Public Service Co. v. AIU Insurance Co., 92 N.Y.2d 631 (1998), continuing duty and the "generally known" exception

Other opinions cited:

• N.Y.C. Bar Op. 1999-7; N.Y.C. Bar Op. 1997-2; N.Y.C. Bar Op. 2002-1; ABCNY Formal Op. 2005-02; N.Y. State 555 (1984)

See also

• NYC Bar Ethics Op. 2005-02: Conflicts Arising Solely From Possession of Confidential Information
• NY State Bar Op. 1078: Confirming No Will to a Former Client's Son
• NY State Bar Op. 1032: Responding to a Former Client's Online Criticism

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2005-03-voluntary-attorney-testimony-concerning-former-clients/