I handled a real estate closing years ago and I'm not sure whether I represented the buyer, the seller, or both. Now I've been subpoenaed to a grand jury about it. What must I do?

Plain-English summary

Several years ago the inquiring attorney conducted a real estate closing, and it is unclear whether the attorney represented the buyer, the seller, or both. The attorney was recently served with a subpoena to testify before a grand jury regarding the transaction and admits being unclear about which parties were clients.

The opinion applies Rule 1.6, "Confidentiality of Information," under which a lawyer shall not reveal information relating to the representation of a client absent client consent after consultation. If both buyer and seller consent to release of the material, the information is no longer confidential and the attorney may comply with the subpoena. If both do not consent, or if only one consents, the attorney has an obligation to move to quash the subpoena to protect the client's interests.

Quoting the comment to Rule 1.6, the opinion observes that a lawyer called as a witness must, absent client waiver, invoke the privilege when applicable, and must comply with the final orders of a court of competent jurisdiction requiring disclosure. The opinion concludes that the attorney has the duty to assert the attorney-client privilege, and if ordered by the court to disclose the contents of the client's file, the attorney must comply with the court's final orders.

In practice

Under this opinion, the response depends on client consent. With both parties' consent, the confidentiality bar lifts and the lawyer may testify. Without it, the lawyer must move to quash and invoke the privilege, and only a final court order overriding the privilege requires disclosure. The opinion resolves the lawyer's uncertainty about who the clients were by treating the confidentiality obligation as applying unless consent is obtained.

Common questions

Q: If a real estate closing lawyer is subpoenaed, can the lawyer just testify?

A: Only if both the buyer and seller consent to release, in which case the opinion says the information is no longer confidential and the attorney may comply with the subpoena.

Q: What if the parties do not both consent?

A: The opinion says the attorney has an obligation to move to quash the subpoena to protect the client's interests and to assert the attorney-client privilege.

Q: What happens if the court orders disclosure anyway?

A: The opinion states that if the attorney is ordered by the court to disclose, the attorney must comply with the final orders of the court.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.6, the analog of Model Rule 1.6, governing confidentiality of information. Rule 1.6(a) bars revealing information relating to the representation absent client consent after consultation. Its comment directs a lawyer called as a witness to invoke the privilege when applicable and to comply with a court's final order requiring disclosure.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / RI RPC 1.6 (confidentiality of information; comment on lawyer called as a witness)

See also

• RI EAP Opinion 93-08: subpoenaed lawyer invokes privilege but obeys final court order under 1.6
• RI EAP Opinion 93-02: subpoenaed lawyer invokes privilege but obeys final court order under 1.6

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%2093-26.pdf

Original opinion text

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

FINAL
ETHICS ADVISORY PANEL
Opinion #93-26, Request #359
Issued June 2, 1993

Several years ago, the inquiring attorney conducted a real estate closing. It is unclear whether the attorney was representing the buyer or seller in the transaction, or both parties. The attorney was recently served with a subpoena to testify before a grand jury with regard to this transaction. The attorney admittedly is unclear as to whether buyer or seller were clients in this matter.

Rule 1.6 entitled "Confidentiality of Information" address this situation. The Rule states that:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

If both buyer and seller consent to the release of this material, then the information is no longer confidential and the attorney may comply with the subpoena. If both buyer and seller do not consent or if only one consents to the release of the material, then the attorney has an obligation to move to quash the subpoena to protect the client's interests. However, the comments to Rule 1.6 state that "If a lawyer is called as a witness to give testimony concerning a client, absent waiver by a client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. The 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 this situation, the attorney has the duty to assert the attorney/client privilege. If the attorney is ordered by the court to disclose the contents of the client's file, then the attorney must comply with the final orders of the court.