OPINION 389
October 1977

Disciplinary Rule  4-101, DR 7-102.

Facts

Attorney (A) represents client (C) in a variety of legal matters. C and his business associate (X) are investigated for tax fraud concerning a business operated by C and X. C and X jointly consult A for legal advice and X is advised by A to employ his own attorney. X is satisfied to have A jointly represent C and X. A thereafter jointly represents C and X. Investigators employed by A conclude that X's version is not believable and A advises that X employ his own attorney. X then employs attorney (Y). Thereafter, both attorneys and both parties meet together and X gives an altered version of the facts which tends to incriminate X and exonerate C. Thereafter, C and X are indicted and X successfully plea bargains in exchange for testimony against C. C employs new counsel to represent him in trial. X will not waive the attorney/client or work product privilege with respect to his representation by A.

Question

1. May A disclose to new counsel, prior to trial, any one or more of the following items: (a) first version of the facts as told to A by X? (b) the second version of the       facts as told by X to A's investigators? (c) the third version of the facts as told during the conference of A, C, X and Y?

2. If X testified in a manner inconsistent with previous versions, may new counsel require testimony of A and/or the investigator on the matters stated above?

3. May A testify as to such inconsistency as may exist following the testimony of X, during the trial of C?

Opinion

Critical to answering each of the above inquiries is the distinction between the ethical duty of an attorney to preserve confidence and secrets and the evidentiary rule of an attorney/client privilege.

Canon 4 commands: "A Lawyer Should Preserve the Confidences and Secrets of a Client."

Disciplinary Rule 4-101 reads as follows:

    1. "Confidence refers to information protected by the attorney/client privilege under applicable law, and "secret" refers to other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client.
    2. Except when permitted under DR4-101 (C), a lawyer should not knowingly:
      1. revel a confidence or secret of his client;
      2. use a confidence or secret of his client to the disadvantage of the client;
      3. use a confidence or secret of his client for the advantage of himself or of a third person, unless the client consents after full disclosure.
    1. A lawyer may reveal: . . . (a) confidences or secrets when permitted under Disciplinary Rules or required by law or court order." Ethical Consideration 4-4 accompanying Canon 4, states in part: "the attorney/client privilege is more limited than the ethical obligation of a lawyer to guard the confidence and secrets of his client. This ethical precept, unlike the evidentiary privilege exists without regard to the nature of source of information or the fact that others may share the knowledge." (emphasis added)

In the opinion of the committee the first two parts of Question One (1) must be answered in the negative. Clearly all such discussions were related to A during the period when the attorney/client relationship existed. Even after discharge, the obligation to preserve the confidence and secrets of a client continues. See Ethical Consideration 4-6.

With respect to question 1(c) we believe attorney A could ethically disclose the statements of X inasmuch as X was no longer represented by A and thus there was no existing attorney/client relationship at the time of the discussions.

At the time of the meeting, X was represented by a new attorney who urged him to tell the altered version of the facts. As such, the discussions were made after termination of the original attorney/client relationship existing between A and X.

Question 2 inquires as to whether substituted counsel for A may require the testimony of A on the matters stated in interrogatory no. 2. This would appear to be governed by Federal Rule of Evidence 501 and is beyond the jurisdiction of this committee.

The third inquiry is whether A may testify as to such inconsistent testimony by X during the trial of C. It is the opinion of this committee that if A were called to testify by new counsel for C, and subject to the evidentiary ruling by the Court under Rule 501 of the Federal Rules of Evidence, the former attorney of C could ethically testify as to the inconsistent testimony of X. Under the facts as presented this committee, the testimony of X at trial would be so clearly perjured that
Disciplinary Rule 7-102(B) would require that it be disclosed. Such rule provides: "(b) A lawyer who received information clearly establishing that: (1) his client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify same, and if his client refuses or is unable to do so, he shall reveal the fraud to the affected person or tribunal."

The testimony would clearly establish an act of perjury and it would be the duty of the attorney to disclose it and certainly if called to testify, by new attorney, he would be ethically permitted to testify as to same.