A family member of my longtime client has subpoenaed me to testify about the client's financial affairs. Does Rule 1.6 let me testify, and what must I do at the hearing?

Plain-English summary

The inquiring attorney sought guidance on whether testimony at a court hearing in response to a subpoena duces tecum would violate Rule 1.6. The attorney had represented Client A for many years on financial matters. About four years earlier, the client engaged Attorney B and the inquiring attorney, and at a meeting with both attorneys and a social worker, the client agreed to allow the social worker access to specific knowledge of the client's financial affairs. The client soon discharged Attorney B and retained Attorney C, and Attorney C notified the inquiring attorney that the client no longer wanted the social worker to be privy to financial information. A lawsuit was then commenced by a family member of Client A, and the inquiring attorney was served a subpoena by that family member. The attorney asked whether he must testify about specific client information in light of Rule 1.6.

The Panel quoted the Comments to Rule 1.6: if a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable, and 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.

The Panel concluded that the attorney should attempt to maintain the confidentiality of the client's affairs, and if ordered by a court or tribunal to reveal protected information, must obey the final orders of that court. It cautioned the attorney not to confuse his responsibilities under Rule 1.6 with the evidentiary attorney-client privilege.

Currency note

This opinion was issued in 1994 (Opinion 94-38, issued June 22, 1994), 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. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: If a lawyer is subpoenaed to testify about a client, must the lawyer comply?

A: The Panel said the lawyer must first attempt to maintain confidentiality and invoke the privilege where applicable, but must obey a court's final order requiring disclosure.

Q: Does the client's earlier permission to share information with a social worker waive confidentiality?

A: The opinion notes the client later withdrew that permission through new counsel; the Panel's guidance turned on the general Rule 1.6 duty and the need to invoke the privilege absent a waiver.

Q: What distinction did the Panel emphasize?

A: It cautioned the attorney not to confuse the ethical duty under Rule 1.6 with the evidentiary attorney-client privilege, which are separate.

Background and rules framework

The opinion interprets Rhode Island Rule of Professional Conduct 1.6 (confidentiality of information), the analog of Model Rule 1.6, and its Comments on a lawyer called as a witness. Rule 1.6(a) barred revealing information relating to the representation absent consent; the Comments directed the lawyer to invoke the privilege when applicable and to obey a tribunal's final order. The Panel distinguished the ethical confidentiality duty from the separate evidentiary attorney-client privilege.

Citations and references

Rules of Professional Conduct:

• MR 1.6 / RI RPC 1.6(a) (confidentiality of information; lawyer called as a witness; invoke privilege, obey final court order)

See also

• RI EAP Opinion 93-02: a subpoenaed lawyer invokes privilege but obeys a final court order under Rule 1.6
• RI EAP Opinion 94-15: whose file is it in a real estate closing; disclosure on consent under Rule 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%2094-38.pdf

Original opinion text

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

0646
FINAL

ETHICS ADVISORY PANEL
OPINION #94-38 REQUEST #502
Issued June 22, 1994

The attorney seeks guidance to determine whether his/her testimony at a court hearing in response to a subpoena duces tecum would violate Rule 1.6. The inquiring attorney has represented Client A for many years regarding his/her financial matters. Approximately four years ago, the client engaged Attorney B and the inquiring attorney regarding a legal matter. At a meeting with both attorneys and a social worker, the client agreed to allow the social worker to have access to specific knowledge of the client's financial affairs. Soon thereafter, the client discharged Attorney B and retained Attorney C. Attorney C notified the inquiring attorney A that the client no longer wanted the social worker to be privy to financial information. Soon thereafter, a law suit was commenced by a family member of Client A and the inquiring attorney was served a subpoena by this family member. The inquiring attorney seeks the Panel's opinion as to whether or not he/she must testify about specific information relating to his/her client in light of Rule 1.6.

The Comments to Rule 1.6 entitled "Confidentiality of Information" states that: "If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the 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."

The attorney should attempt to maintain the confidentiality of the client's affairs and if ordered by a court or other tribunal to reveal protected information, then the attorney must obey the final orders of that court. The Panel cautions the inquiring attorney not to confuse his responsibilities under Rule 1.6 with the evidentiary attorney-client privilege.