Ethics Hotline & Opinions

ETHICS DOCKET NO. 2002-31

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2002-31

Duty of confidentiality versus compliance with court order

 

You state that you have previously represented a wife in various legal matters. At this time, a Plaintiff in a confessed judgment action has received a judgment against the wife and is attempting to execute upon the judgment. Your law firm has now been served with documents requesting information relating to your prior representation of the wife. The wife has asserted the privilege and her attorney in this matter has requested that your firm refuse to produce all documents requested.

At this time, as a result of a Motion to Compel, you are preparing a Privilege Log. You anticipated that the Court will find some of the documents not to be privilege and will order their production. You then anticipate that the lawyer for the wife will appeal the trial court's order.

You question whether you will be allowed to comply with the order of the trial court, or whether you must wait until all appeals for that order are exhausted before producing any documents.

Rule 1.6 of the Maryland Rules of Professional Conduct states that a lawyer shall not reveal confidential information except under certain circumstances, which are listed in Rule 1.6(B). Rule 1.6(b) provides as follows, in pertinent part:

"A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

(4) to comply with these Rules, a court order or other law."

First, assuming that you are correct and the Judge orders documents to be produced, Rule 1.6(b)(4) allows you to produce the documents if you choose. This Rule is permissive. If you reasonably believe it is necessary to divulge information to comply with a court order then you will not be committing an ethical violation in doing so regardless of your former client's wishes. You may also choose to divulge any information but subject yourself to the legal ramification of such actions.

 Your inquiry requests clarification of the Comment to the rule, which provides that "[t]he lawyer must comply with the final orders of a court of competent jurisdiction requiring the lawyer to give information about the client." Your concern that the word 'final' may mean an order that is no longer subject to any appeals is too narrow an inter-pretation. The Committee doubts that the word 'final' in the commentary would mean an order that is no longer subject to appeals as this would significantly impede the judicial process. If the rule had meant the order to be a final order, it would have said so in the Rule itself.

Thus, the Committee believes that you may turn over documents so ordered by the Court within the Court's deadlines regardless of whether your prior client's attorney is going to appeal or attempt to stay the Order.

 

DISCLAIMER: Opinions of the Maryland State Bar Association (MSBA) Ethics Committee are an uncompensated service of the MSBA. This Committee’s opinions are not binding on the Maryland Court of Appeals, Maryland Attorney Grievance Commission, MSBA or this Committee. The reader is advised that subsequent judicial opinions, revisions to the rules of professional conduct, and future opinions of this Committee may render the Opinions stated herein outdated. As such, the Committee’s opinions are advisory only and neither the Committee nor the MSBA assumes any liability whatsoever with respect thereto. Accordingly, reliance upon the opinions of this Committee is solely at the risk of the user.