Question: Where Attorney plans to testify as an expert witness, may Attorney answer questions about Attorney’s prior representation of a client, where Attorney was ordered by a court in the previous case to testify about confidential information, and where Attorney’s testimony in the present matter would be similar to the testimony now contained in the public record?
Answer: Information related to Attorney’s representation of a former client is confidential and protected from disclosure by Rules 4-1.9(c) and 4-1.6.  Even if the information is a matter of public record, it is nevertheless confidential information and must not be disclosed by Attorney except pursuant to a valid exception to Rule 4-1.6.  See Comment [10].  Attorney is permitted to disclose information related to the former representation to the extent reasonably necessary to comply with other law or a court order.  Rule 4-1.6(b)(4).  Whether other law requires disclosure of the information is a matter outside the scope of the Rules of Professional Conduct.  If the court in which Attorney testifies orders Attorney to reveal confidential information without former client consent, Attorney should oppose the order and assert all nonfrivolous claims that the order is not authorized by other law or that the information is protected by privilege or other applicable law.  Comment [11].  The ethical obligation to protect confidential information is broader than the attorney-client privilege. See Mo. Informal Ethics Op. 20030016 (2003).  Attorney should seek to ensure that any order is as specific as possible and limits access to the testimony to those with a need to know.  Rule 4-1.6, Comment [12].  Unless review is sought, Attorney is permitted to comply with the order.

Informal Opinions are ethics advisory opinions issued by the Office of Legal Ethics Counsel to members of the Bar about Rule 4 (Rules of Professional Conduct), Rule 5 (Complaints and Proceedings Thereon), and Rule 6 (Fees to Practice Law) pursuant to Missouri Supreme Court Rule 5.30(c). Written summaries of select Informal Opinions are published for informational purposes as determined by the Advisory Committee of the Supreme Court of Missouri pursuant to Rule 5.30(c). Informal opinion summaries are advisory in nature and are not binding. These opinions are published as an educational service and do not constitute legal advice.

To request an Informal Opinion, please visit: https://mo-legal-ethics.org/for lawyers/requesting-an-informal-advisory-opinion/.

© Copyright 2023