These summaries were prepared by McGuireWoods LLP lawyer Thomas E. Spahn. They are based on the letter opinions issued by the Virginia State Bar. Any editorial comments reflect Mr. Spahn's current personal views, and not the opinions of the Virginia State Bar, McGuireWoods or its clients. 
 
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  Topic: 30 - Disclosing Confidences Under Court Order
LEO NumTopicsSummaryDate
1688

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27-Litigation Tactics (Including Misrepresentations, Tape Recordings)

30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

36-Withdrawal from Representations

[WITHDRAWN] A client suing a former employer receives (from a former colleague at the company) a letter to the employer from its lawyer. The client gives a copy of the letter to the client's lawyer, who does not read it but instead seals it in an envelope. The client asks the lawyer to destroy the letter, because the client is worried that the former colleague will be punished if the letter is disclosed. The Bar holds that: the existence and contents of the letter constitute a client "secret"; the lawyer is not required to read the letter, because the "zealous representation" duty is outweighed by the client's instructions to destroy the letter; the lawyer is under no obligation to disclose the letter's existence because there is no "ongoing client crime or fraud involved;" the lawyer need not provide a copy of the letter to the employer (unless there is an outstanding discovery request, in which case the lawyer should object to the request but comply with any order to produce the letter); the lawyer need not withdraw from representing the client. [Although it may not change the result of this LEO, the word "zealous" does not appear in the Rule themselves.]12/9/1996
1628

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30-Disclosing Confidences Under Court Order

A client representing a mildly retarded client must move to quash a subpoena by a federal department for confidential consultant's reports, but may disclose the information should the motion to quash be denied. 2/7/1995
0787

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30-Disclosing Confidences Under Court Order

48-Criminal Defense Lawyers

A criminal defense lawyer must testify if a motion to quash is denied and the court orders the lawyer's testimony.4/14/1986
0967

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30-Disclosing Confidences Under Court Order

A law firm may produce a former client's documents after unsuccessfully opposing production and being ordered by the court to produce the documents. 8/31/1987
1352

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3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

30-Disclosing Confidences Under Court Order

66-Lawyers Acting as "Scriveners"

71-Representing Corporations

A lawyer acted as a "scrivener" for two shareholders of a corporation attempting to reach an agreement (the lawyer had represented the company, and therefore properly declined to represent either shareholder in their dispute). The Bar warned that a lawyer acting as a "scrivener" faces multiple representation problems, especially if the parties are not otherwise represented by lawyers. If a dispute arises between shareholders of a closely held corporation, the lawyer may not play any role if the lawyer had been the corporation's lawyer. If one of the parties called the lawyer to testify, the lawyer should move to quash the subpoena. If the court denies the motion, the lawyer may testify. [Superseded in LEO 1803, which held that the existence of an attorney client relationship depends on the lawyer's action rather than a mere title, and holding that the attorney client relationship would arise between prisoners and lawyers practicing at a state prison if the lawyers did anything more than simply typing up what the prisoner wrote].5/8/1990
0439

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30-Disclosing Confidences Under Court Order

A lawyer can testify about the length of time the lawyer saw a client if ordered to do so by the court over the lawyer's objection. 11/17/1981
1300

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30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

A lawyer may not reveal client confidences unless disclosure is compelled by a court after the lawyer challenges the subpoena in court. The duty to preserve confidences survives the representation. Here, the identity of a legal aid client is a confidence because its disclosure might embarrass the client. 11/16/1989
0645

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30-Disclosing Confidences Under Court Order

A lawyer may produce privileged documents pursuant to a court's order. 1/16/1985
0334

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30-Disclosing Confidences Under Court Order

A lawyer may produce privileged information to a grand jury if the lawyer challenges the subpoena and loses. If the lawyer believes that the materials are not privileged, the lawyer may reveal the information without challenging the subpoena. 9/18/1979
ABA-385

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30-Disclosing Confidences Under Court Order

A lawyer receiving a government subpoena for his files must oppose the subpoena unless the client consents to revealing the information. 7/5/1994
1435

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3-Multiple Representations on the Same Matter

4-Witness-Advocate Rule

30-Disclosing Confidences Under Court Order

58-Real Estate Lawyers

A lawyer representing both the buyer and seller in a real estate transaction must advise both clients that "he will not be able to represent either party against the other if a dispute should arise." The lawyer may testify on behalf of one of the parties if the other former client consents or the court orders it. 11/18/1991
0761

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20-Government Official Conflicts

30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

A lawyer who is a member of a local governing body may disclose clients' identity if required by law. 1/19/1986
1811

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30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

75-Representing Estates and Executors

76-Trust and Estate Lawyers

A lawyer who previously represented a co-executor of an estate must follow the former client's directions and refuse to provide documents to the other co-executor's lawyer, despite an agreement among the co-executors that they would share financial information; although lawyers may disclose client confidences to comply with a "law or a court order," the co-executors contract is not "law"; any dispute about the contract should be handled by the lawyer currently representing the co-executor.4/25/2005
ABA-456

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30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

48-Criminal Defense Lawyers

Although most courts hold that a criminal defendant's claim of "ineffective assistance of counsel" waives the attorney client privilege, it does not relieve the defendant's lawyer of the ethics duty of confidentiality. If the court overrules a privilege claim, the defendant's lawyer "must provide [the information sought] or seek appellate review." In analyzing possible exceptions to the ethics duty of confidentiality, the lawyer might rely on the self defense exception under which "the lawyer may disclose information relating to the representation insofar as necessary to dissuade a prosecuting, regulatory or disciplinary authority from initiating proceedings against the lawyer or others in the lawyer's firm, and need not wait until charges or claims are filed before invoking the self defense exception." The lawyer may rely on that exception only if the charges "imminently" threaten the lawyer with "serious consequences," and only to the extent that disclosure is necessary. Given the narrowness of the self defense exception, "it is highly unlikely that a disclosure in response to a prosecution request, prior to a court supervised response by way of testimony or otherwise, will be justifiable."7/14/2010
0300

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30-Disclosing Confidences Under Court Order

If ordered by the court, a lawyer may disclose correspondence with another lawyer relating to a proposed joint venture between their clients. 8/23/1978
ABA-473

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30-Disclosing Confidences Under Court Order

31-Protecting and Disclosing Confidences and Secrets

46-Confidentiality - Miscellaneous

Lawyers receiving a subpoena or other compulsory process calling for the disclosure of client confidential or privileged communications or documents: (1) must notify or make reasonable steps to notify current or former clients of the subpoena; (2) must consult with available clients about whether to challenge the demand or appeal (but may withdraw if such an appeal is beyond the retention scope or is a new matter the lawyer does not wish to handle); (3) must consult with available clients about fees if the original retainer letter does not require clients' payments in that situation -- although lawyers "may be required to challenge the initial demand" even without a fee agreement; (4) "should" resist disclosure on behalf of unavailable clients, but may comply with a court order overruling any objections (in that situation, lawyers may seek to withdraw or file a later quantum meruit action for fees); (5) need not appeal on behalf of unavailable clients a court order requiring disclosure; (6) must in all circumstances only disclose client confidential or privileged information or communications "to the extent reasonably necessary" (which may require lawyers to seek protective orders or other arrangements.2/17/2016
ABA-476

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8-Bills and Fees

30-Disclosing Confidences Under Court Order

46-Confidentiality - Miscellaneous

Lawyers seeking to withdraw as counsel of record because they are not being paid must "err on the side of non-disclosure" of their grounds for seeking withdrawal. Courts "have differed widely" as to information they require before considering such a withdrawal motion, and should work with lawyers to minimize the required disclosure. Lawyers "could": (1) seek withdrawal without disclosing any client confidences; (2) if unsuccessful, respond to courts' insistence for some additional information by requesting an in camera or under seal process; and (3) publicly disclose client confidences only if the court orders such disclosure.12/19/2016

Copyright 2000, Thomas E. Spahn