MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 1991-03
Confidentiality of information gained during representation of couple in criminal investigation; wife now charged with murdering husband.
Your letter sets forth the following facts. In early 1989 husband and wife retained you with respect to a pending investigation by the FBI. During that representation you had numerous conversations with both husband and wife. Subsequent to that representation, husband wife separated, and the wife, during a meeting with you, made various representations to you concerning both the separation problem and the prior matter, and requested that you represent her in the domestic problem. You requested the husband's consent, but he refused. Accordingly, you advised the wife to get independent counsel as was already the case with the husband. More recently, the wife was charged with first degree murder of her estranged husband. You have received inquiries from the attorney representing the husband's estate and also from the attorney representing the wife in the criminal matter concerning what the husband and wife had discussed with you in your prior representation of them as well as in the meeting with the wife prior to your referring her to independent counsel with respect to the domestic problem.
Based on the foregoing, you have raised three questions.
One of your questions is whether there is any distinction between the attorney-client privilege and the confidentiality provisions of the Rules of Professional Conduct, and, if so, how each set of rules applies to the facts of this case. In response to this question, Rule 1.6 of the Rules of Professional Conduct, and the Comments thereto, make clear that the attorney-client privilege is an evidentiary issue in judicial and other proceedings, whereas Rule 1.6's confidentiality provisions pertain to ethical situations other than those where evidence is sought from the lawyer through compulsion of law. The Comment goes further and points out that "the confidentiality rule applies not merely to matters communicated in confidence by the client, but also to all information relating to the representation, whatever its source."
Because the attorney-client privilege, as distinct from the confidentiality provisions of Rule 1.6, deals with legal evidentiary issues, and it is not the function of this Committee to render opinions or advice concerning legal issues, this Committee can opine only ethical issues raised in your letter.
You inquire as to whether the attorney-client privilege that you had with the husband at the time of the joint representation with the wife extends beyond the time of the joint death of the husband. Again, with respect to the attorney-client evidentiary issue, this is a question of law with respect to which the Committee renders no opinion.
With respect to the ethical issue, the Committee cannot find any provision in the Rules which deals with this question. In Ethics Docket 87-8, this Committee noted with approval Bogart v. Willis, 158 Md. 393, 404-405 (1929), in which Opinion the Maryland Court of Appeals upheld the lower court's sustaining of objections to questions requiring a lawyer witness to divulge information which he acquired from the deceased while acting as his attorney. From a purely ethical point of view, and regardless of what the law is with respect to the attorney-client evidentiary issue, this Committee believes that the confidentiality provisions of Rule 1.6 continue to apply even after the death of a client. We believe that the confidentiality rules can be waived by the personal representatives of the estate of the deceased client. Accordingly, in the context of your inquiry, to the extent that the wife's attorney is requesting information about representations made by the husband during your joint representation of the husband and wife, you cannot reveal any such information unless the personal representatives of the husband's estate consent. Alternatively, if the wife's attorney is able to obtain an Order of Court requiring you to reveal such information, then Rule 1.6 9b)(4) expressly permits you to reveal such information such circumstances. Obviously, to the extent that the husband made representations to you in the presence of the wife, the wife is in a position to tell her lawyer about such representations without your being involved in any way.
Finally, you inquire as to whether, upon inquiry by the husband's estate, you are able to revel representations made by the wife to you when she requested you to represent her in the domestic matter prior to your telling her that she would have to get independent counsel. Rule 1.6(a) prohibits a lawyer from revealing "information relating to representation of a client unless the client consents after consultation…." The Comment to Rule 1.6 states as follows:
"'Information relating to representation' protected under paragraph (a) includes revelations made to a lawyer by a person seeking to engage the lawyer's services. The revelations are protected even if the prospective client decides not to engage the services of the lawyer does not agree to undertake the representation."
Based on the foregoing, without the consent of the wife, you may not divulge any of her representations to you when you met in the context of the domestic dispute, even though you ultimately referred her to independent counsel. Again, if the estate of the husband is able to obtain a court order compelling you to so testify, you may do so pursuant to Rule 1.6(b)(4).