Question: Ten years ago, Lawyer A created a declaration of trust for property for a client, Grantor, and named one of Grantor’s children, Child 1, as trustee.  Lawyer A also did additional estate planning for Grantor.  Five years ago, Lawyer B amended the declaration of trust to add another child of Grantor, Child 2, as a co-trustee with Child 1.  Two years ago, Grantor passed away.  A dispute arose between the co-trustees as to the property in the declaration of trust, and Child 1 sued Child 2.  Lawyer A has been subpoenaed to testify as to Grantor’s intent as to the property in trust, as well as the rest of the estate plan.  Would Lawyer A violate any Rules of Professional Conduct if Lawyer A sat for a deposition or testified pursuant to a subpoena at trial in the underlying litigation between Child 1 and Child 2?      

Answer:  The Rules of Professional Conduct do not prohibit Lawyer A, per se, from testifying during a deposition or at trial pursuant to subpoena in the underlying litigation,   however, Rules 4 dash–1.9(c) and 4 dash–1.6 may severely restrict Lawyer A’s ability to testify to relevant issues in the underlying lawsuit.  Rule 4 dash–1.9 addresses a lawyer’s duty to former clients.  Subsection (c)(2) provides that a lawyer who has formerly represented a client in a matter shall not reveal information relating to the representation except as permitted by the Rules of Professional Conduct.  Rule 4 dash–1.6(a), in turn, provides that a lawyer may not reveal information relating to the representation of a client unless the client gives the lawyer informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by Rule 4 dash–1.6(b).

Rule 4 dash–1.6 survives the death of a client.  See Comment [17] to Rule 4 dash–1.6 and Missouri Informal Opinion 990146.  The confidentiality provisions of Rule 4 dash–1.6 are much broader than the substantive law issues of attorney-client and work product privileges. Confidentiality covers all information related to the representation, no matter its source.”^[1]  See Rule 4 dash–1.6, Comment [3].

Thus, Rule 4 dash–1.6 will prohibit Lawyer from revealing information about Grantor’s estate planning unless the disclosure was impliedly authorized, Granter gave informed consent to Lawyer to do so, or one of the Rule 4 dash–1.6(b) exceptions apply.

Informed consent as used in Rule 4 dash–1.6 is defined as the “agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.”  Rule 4 dash–1.0(e).

Rule 4 dash–1.6(b) provides that “[a] lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: …(4) to comply with other law or a court order.”  Determining if there is “other law” that permits disclosure of the Grantor’s confidences is a matter of law and beyond the scope of the Rules of Professional Conduct.  Lawyer A should consult Comment [10] to Rule 4 dash–1.6 for additional guidance as to any possible exception at law and use independent professional judgment on this issue.

A subpoena is not enough to require disclosure of client confidences.  Rather it must be a court order and Lawyer A must assert “all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.”   Comment [11] to Rule 4 dash–1.6.  If the court orders the disclosure of client confidences and an appeal is not sought, Lawyer A may comply with the court’s order.   See Comment [11] to Rule 4 dash–1.6; See also Missouri Informal Advisory Opinions 20060004, 20010154, 2017 dash–04, 2026 dash–04, and 2026 dash–06.

In the event that disclosure is permitted by Rule 4 dash–1.6(b), Lawyer A should consult Comments [12] and [13] to Rule 4 dash–1.6 for guidance on ensuring that the disclosure is only to the extent Lawyer A reasonably believes is necessary to accomplish the specified purpose.

[1] Related bodies of law address confidentiality through attorney-client privilege and the work-product doctrine, but interpretations of those principles are matters of law and beyond the scope of the Rules of Professional Conduct.  See Rule 4–1.6, Comment [3].

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