UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER鈥橲 CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 98-30
Attorney A represented Client X on a probate matter roughly eight years ago. Later, Client X sued Attorney A and other attorneys. After denying all the allegations, Attorney A was dismissed with prejudice by Client X.
The remaining attorneys want Attorney A to provide an affidavit and/or deposition as to the conversations between Attorney A and her former client, Client X, which occurred during the course of Attorney A's representation of Client X.
QUESTION:
Although Attorney A was dismissed with prejudice from the lawsuit, does the attorney-client privilege continue to remain in effect regarding the communications between Attorney A and Client?
SUMMARY:
The attorney-client privilege continues after the attorney-client relationship has terminated. Therefore, in response to the third party's request for affidavits and/or depositions, Attorney A must assert the attorney-client privilege and may only disclose such information by order of the court.
OPINION:
Under Rule 1.6 of the Rules of Professional Conduct, a lawyer shall not reveal information relating to representation of a client This prohibition is subject to two very limited exceptions set forth in Rule 1.6(b):
(1) To prevent the client from committing a criminal act; or
(2) To establish a claim or defense on behalf of a lawyer in a controversy between the lawyer and 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 proceeding concerning the lawyer's representation of the client.
The Comment to the Rule provides that if a lawyer is called to give testimony concerning his/her client absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. "The Comment specifically states that the lawyer's A duty of confidentiality continues after the client-lawyer relationship has terminated."
Neither exception found in paragraph (b) is applicable to the factual situation presented. First, there is no suggestion of criminal activities. Second, since Client X has dismissed Attorney A with prejudice, there is no longer any controversy between Attorney A and Client X or need on Attorney A's part to establish a defense or respond to allegations concerning her representation of Client X.
Attorney A has the duty to keep communications between herself and Client X confidential. Regardless of whether called to give third part affidavits and/or depositions, Attorney A must assert the attorney-client privilege since it continues after the attorney-client relationship has terminated.