My former divorce client's new lawyer says I coerced her into the divorce, and I've been subpoenaed to testify. How do I proceed without violating her confidences?

Plain-English summary

The inquiring attorney represented a woman in a divorce proceeding. After the divorce was granted, the client retained a new attorney who, before entry of final judgment, filed a motion to reopen the case alleging that the client had been coerced into the divorce by the inquiring attorney. The inquiring attorney was then subpoenaed to appear in court by the husband's attorney. The inquiring attorney told opposing counsel the testimony would be detrimental to the husband, but opposing counsel did not withdraw the subpoena. The inquiring attorney sought guidance on how to proceed without violating the client's confidences.

The panel said Rule 1.6 ("Confidentiality of Information") applies, and quoted Rule 1.6(b): a lawyer may, but is not obligated to, reveal information to the extent the lawyer reasonably believes necessary to prevent the client from committing a criminal act likely to result in imminent death or substantial bodily harm, or to establish a claim or defense in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client. It cited the comments, which state that if the lawyer is charged with a wrong in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge, that such a charge can arise in a civil proceeding, and that lawyers must make every practicable effort to avoid unnecessary disclosure, limit disclosure to those who need to know, and obtain protective orders or make other arrangements minimizing the risk.

The panel concluded that the attorney has a duty to invoke the attorney-client privilege unless the client waives it. However, it added that a lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

In practice

Under this opinion, a lawyer subpoenaed to testify while facing an allegation that the lawyer coerced a former client's divorce is governed by Rule 1.6: the lawyer's self-defense exception in Rule 1.6(b)(2) permits revealing confidences to respond to allegations concerning the representation. The opinion holds the lawyer must invoke the attorney-client privilege unless the client waives it, must minimize any disclosure, and must comply with a final court order compelling information about the client.

Common questions

Q: Can I reveal my former client's confidences to defend against the coercion allegation?

A: Per the opinion, Rule 1.6(b)(2) permits a lawyer to reveal information reasonably necessary to establish a defense or respond to allegations concerning the lawyer's representation of the client.

Q: Do I still have to assert the privilege at the subpoena?

A: Per the opinion, yes; the attorney has a duty to invoke the attorney-client privilege unless the client waives it.

Q: What if the court orders me to testify anyway?

A: Per the opinion, a lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

Q: How much can I disclose?

A: Per the opinion and the comments to Rule 1.6, the lawyer must make every practicable effort to avoid unnecessary disclosure, limit it to those who need to know, and seek protective orders or arrangements that minimize the risk.

Background and rules framework

The opinion applies Rhode Island Rule 1.6 (confidentiality of information), corresponding to Model Rule 1.6, and specifically the Rule 1.6(b) self-defense exception together with its comments. The panel reconciled the duty to invoke the attorney-client privilege with the obligation to obey a final court order compelling disclosure, and with the duty to minimize disclosure.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information; self-defense exception)
• RI RPC 1.6(b)(2); comments to Rule 1.6

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 90-27: Cannot Testify About a Former Divorce Client Absent a Court Order or Consent
• RI EAP Op. 92-80: Confidentiality When a Prior Lawyer Knew of a Client's Fraud
• RI EAP Op. 92-72: Reporting Opposing Counsel's Direct Contact With a Represented Client

Currency note

This opinion was issued in early 1993 (Opinion 93-02, issued March 15, 1993), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.6 (confidentiality of information), including its exceptions. 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 mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2093-02.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion 93-2, Request #332
Issued March 15, 1993

An attorney seeks Panel advice with regard to a confidentiality issue. The attorney represented a woman in a divorce proceeding. After the divorce was granted the client retained a new attorney. Prior to the entry of final judgment, the new attorney filed a motion to reopen the case alleging that the client was coerced into a divorce by the inquiring attorney. Subsequently, the inquiring attorney was subpoenaed to appear in court by the husband's attorney. The attorney informed opposing counsel that the testimony would be detrimental to the husband, however, opposing counsel did not withdraw the subpoena. The inquiring attorney seeks guidance on how to proceed while not violating the client's confidences.

Rule 1.6 entitled "Confidentiality of Information" applies. The Rule states that:

(b) A lawyer may, but is not obligated to reveal such information to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceedings concerning the lawyer's representation of the client.

The comments to this Rule explicitly state that "If the lawyer is charged with a wrongdoing in which the client's conduct is implicated, the rule of confidentiality should not prevent the lawyer from defending against the charge." "Such a charge can arise in a civil proceeding and can be based on a wrong allegedly committed by the lawyer against the client, or on a wrong alleged by a third person . . ." "Lawyers must make every effort practicable to avoid unnecessary disclosure of information relating to a representation, to limit disclosure to those having the need to know it, and to obtain protective orders or make other arrangements minimizing the risk of disclosure."

In this case, the attorney has a duty to invoke the attorney-client privilege, unless the client waives the privilege. However, "a lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client."