Ethics Opinions

ETHICS OPINION NO. 95
OF THE MISSISSIPPI BAR

RENDERED Thursday, June 07, 1984

REVEALING CONFIDENCES OR SECRETS OF A CLIENT- An attorney may reveal confidences or secrets of his client when required by law or court order.

The Ethics Committee of the Mississippi State Bar has been asked to render an opinion on the following question:

When a lawyer as a private litigant is ordered by the Court to reveal confidences and secrets of his client, which confidences and secrets the lawyer believes to have nothing to do with the pending litigation, may he do so without violating the Code of Professional Responsibility?

The ethical implications of this subject are fully covered by Disciplinary Rule 4-101, which states that "a lawyer shall not knowingly . . . [r]eveal a confidence or secret of his client." Under that rule, "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 likely to be detrimental to the client. DR 4-101[A].

Miss. Code Ann. 73-3-37(4) provides it is the duty of attorneys" . . . [t]o maintain inviolate the confidence and, at every peril to themselves, to preserve the secrets of their clients . . ." It was held inMcCaslin v. Willis, 197 Miss. 366, 19 So. 2d 751 (1944) that this statute (then codified as Miss. Code 8665 (1942)) is the only authorization of a privilege for communications between attorney and client, and distinguished that privilege from the privileged communications created by statute for physician and patient. This statute has never been held to create an absolute privilege extending to all facts surrounding or conceivably connected with the attorney's representation of his client. In fact, it appears to relate only to communications which the client makes to his legal advisor, for the purpose of professional advice or aid upon the subject of his rights or liabilities, and the attorney's advice emanating from the attorney-client relationship.Rogers v. State, 266 So. 2d 10, 20 (Miss. 1972);Randal v. Yates, 48 Miss. 685 (1873).

It is important to note that 73-3-37 requires the attorney to maintain the confidences and secrets of his clients, the exact terms used as distinctions in DR 4-101[A]. The statute thus seems to expand the evidentiary privilege beyond that assumed in the

Disciplinary Rule. However, the decisions cited above appear to restrict the statute's scope. This highlights an important point: The determination of whether information is privileged or not is a question of law, not ethics, which is beyond the authority of this committee to address.

Resolution of this legal question is not necessary to our opinion, however. Disciplinary Rule 4-101[C][2] provides that a lawyer may reveal confidences or secrets when required by law or court order. When a rule of law or a specific court order requires the revelation of the confidences or secrets, even though the lawyer may believe they have nothing to do with the pending litigation, he is required to make those disclosures and his revelations are not inconsistent with the requirements of the Code of Professional Responsibility.

It should be noted at this point that Canon 7 and the Ethical Considerations and Disciplinary Rules thereunder require a lawyer to represent his client zealously within the bounds of the law. It is the opinion of the committee that, while an attorney is not subject to disciplinary action for revealing confidences or secrets of a client under court order, he is nonetheless required by Canon 7 to raise the issue of the confidentiality or secrecy of the information, and any attendant attorney-client privilege, in the proceedings where the disclosure is sought and to actively assert this confidentiality, secrecy, or privilege, by motion for protective order or other available procedural means.