If a former client falsely testifies that the lawyer gave him certain advice, may the lawyer reveal the truth and testify despite the privilege?

Plain-English summary

The State Bar of California asked for an opinion on these facts: a Texas attorney had helped a California lawyer obtain a Juarez divorce. In a later California disciplinary proceeding against that California lawyer, the lawyer testified that the Texas attorney had advised him he was free to remarry the day after registering as a resident of Juarez. The California Bar believed that account was false and that the Texas attorney's testimony was material to refuting it, but the respondent's counsel refused to release the Texas attorney, who therefore declined to testify voluntarily.

The committee concluded the Texas attorney would be justified in voluntarily permitting his deposition to be taken. It reasoned that the California attorney had waived the privileged character of their communications, citing a Texas evidence treatise and Rodriguez v. State and Hunt v. Blackburn. It added that, under the first sentence of the second paragraph of Texas Canon 34 (ABA Canon 37), a lawyer falsely accused by his client is not precluded from disclosing the truth about the accusation, and that under Texas Canon 26 (ABA Canon 29) it is the lawyer's duty to testify, also referencing Texas Canon 38 (ABA Canon 41). The vote was 7-0.

Currency note

This opinion was issued in 1947, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; a lawyer's ability to reveal client information to defend against an accusation is now addressed by ABA Model Rule 1.6(b)(5), and candor in a proceeding by Model Rule 3.3. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could the lawyer testify despite the attorney-client privilege?

A: Yes. The committee concluded the client had waived the privileged character of the communications, so the Texas attorney would be justified in voluntarily giving his deposition.

Q: Did the false accusation change the lawyer's obligations?

A: Yes. The committee read Texas Canon 34 (ABA Canon 37) to allow a falsely accused lawyer to disclose the truth about the accusation, and Texas Canon 26 (ABA Canon 29) to make it his duty to testify.

Q: Did the respondent's refusal to release the lawyer control?

A: No. Despite the respondent's counsel refusing to release him, the committee found the privilege waived and the lawyer justified in testifying voluntarily.

Background and rules framework

The opinion interprets former Texas Canons 26, 34, and 38 (ABA Canons 29, 37, and 41), on the lawyer's duty to testify, the response to a client's false accusation, and upholding the honor of the profession, together with the evidentiary waiver of privilege. The modern analogs are ABA Model Rule 1.6(b)(5) (the self-defense exception permitting disclosure to respond to allegations concerning the representation) and Model Rule 3.3 (candor toward the tribunal).

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality; self-defense exception in (b)(5)), as the modern analog
• MR 3.3 (candor toward the tribunal), as the modern analog
• Texas Canons 26, 34, and 38; ABA Canons 29, 37, and 41

Cases:

• Rodriguez v. State, 94 S.W.2d 476 (cited on waiver of privilege)
• Hunt v. Blackburn, 128 U.S. 464 (U.S.), on waiver of the attorney-client privilege

Other authorities:

• McCormick and Ray, Texas Law of Evidence, page 321, Sec. 233

See also

• TX Ethics Op. 18: The Employer's Lawyer Facing the Comp Claimant
• TX Ethics Op. 33: Withholding a Pregnancy From the Divorce Court

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-9/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_9.pdf

Original opinion text

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

QUESTION PRESENTED

The Secretary of the State Bar of California desires an opinion upon the following facts:

"A witness in Texas, who is an attorney, and whose deposition we desire to take, was employed by an attorney in California to secure a Mexican divorce for him. The Texas attorney took him to Juarez, where he registered as a resident and designated an attorney licensed there to represent him. Two days thereafter, and before the divorce action was filed in Juarez, the California attorney was married to another person. Subsequently a disciplinary proceeding was instituted against the California attorney in which proceeding he testified regarding said purported divorce action and his remarriage and as to the advice given to him by the Texas attorney to the effect that he was at liberty to remarry the day following his registration as a resident of Juarez.

We have reason to believe that these facts are not true and that such advice was not given by the Texas attorney. The testimony of this witness as to the advice actually given is very material to our disciplinary proceeding to refute the testimony of the respondent as to his state of mind at the time he remarried and to show that he has falsely testified in these proceedings.

A partial transcript of our disciplinary proceeding, containing the testimony of the respondent regarding this phase of the matter, was furnished to the Texas attorney together with points and authorities which we believe sustain our position that any privilege that might have been claimed by the respondent in our proceedings, or by the Texas attorney, has been waived. However, in view of the fact that the counsel for said respondent has advised the Texas attorney that he refuses to release him and permit him to testify, the Texas attorney has refused to voluntarily permit his deposition to be taken.

If your association has a Committee on Legal Ethics, will you please submit this matter to them for an opinion as to whether or not under the facts as stated it would be improper for the Texas attorney to voluntarily testify as to the facts within his knowledge or of record regarding said divorce action, his representation of the respondent and the advice given by him."

18 Baylor L. Rev. 197 (1966)

UPHOLDING THE HONOR OF THE PROFESSION - CONFIDENCES OF A CLIENT - FALSE ACCUSATIONS. DISCOVERY OF IMPOSITION AND DECEPTION
A Texas attorney falsely accused by a client, a California attorney, in a California disciplinary proceeding against the client, has a duty to disclose the truth in respect to the false accusation.

Canons 26, 34, 38. A.B.A. Canons 29, 34, 41.

The attorney would be justified in voluntarily permitting his deposition to be taken. The California attorney has waived the privileged character of his communications with the Texas attorney. McCormack and Ray, Tex. Law of Evidence, page 321, Sec. 233 and cases cited, Rodriguez vs. State, 94 SW 2d 476, 479, 480 and Hunt vs. Blackburn, 128 U.S. 464, 32 Law Ed. 488, 491. Furthermore, if the Texas attorney is falsely accused by the California attorney, under the first sentence of the second paragraph of Texas Canon 34 (American Bar Association Canon 37) the Texas attorney is not precluded from disclosing the truth in respect to the false accusation; in fact, under Texas Canon 26 (A.B.A. Canon 29) it is his duty to testify. (See also Tex. Canon 38 - A.B.A. 41.) (7-0)

Tex. Comm. On Professional Ethics, Op. 9 (1947)