Legal Ethics Opinion No. 1433 Confidences and Secrets: Lawyer as Witness To Defend Himself Against Former Client's Accusation of Criminal Conduct You have presented a hypothetical situation in which the defendant in a murder-for-hire case has made statements to an FBI agent that his former attorney was responsible for the killing. The former attorney is willing to testify for the Commonwealth if such testimony is not prohibited by the Virginia Code of Professional Responsibility. You have asked the committee to opine whether, under the facts of the inquiry, the accusations by the former client will permit the attorney to testify about, and disclose, client confidences. The appropriate and controlling Disciplinary Rule related to your inquiry is DR 4-101(C)(4) which states that a lawyer may reveal confidences or secrets necessary to defend himself or his employees or associates against an accusation of wrongful conduct. The committee has previously opined, in LEO #488, that it would be improper for an attorney to disclose confidential information gained from a client, even though that information would exonerate another individual and even though the attorney no longer represents the client. The committee based its decision, however, on DR 4-101(B), and there was no accusation of wrongful conduct against the former attorney in that instance. As to the propriety of an attorney to testify as to confidential information provided by his client, see also LEOs #334, 364, 439, 645, 787, 967. Under the facts you have presented, the committee opines that the former attorney may disclose to the commonwealth's attorney or the court hearing the matter confidences gained from the attorney-client relationship, since the defendant has made statements to the FBI agent which would tend to incriminate the former attorney. Disclosure should be made only to the extent necessary to rebut any accusation by the former client of the attorney's wrongful conduct or involvement in the alleged murder-for-hire. The committee believes that confidences may be revealed by the former attorney with or without an indictment from the court or tribunal. The committee suggests, however, that the former attorney may wish to consider seeking a judicial ruling in limine on the propriety of disclosure under the circumstances. See New York City Bar Legal Ethics Opinion #1986-7 (12/19/86), ABA/BNA Law. Man. on Prof. Conduct, 901:6403. Committee Opinion October 21, 1991
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