UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 94-30
What are the responsibilities of an attorney subpoenaed to testify in family court regarding the whereabouts of his client?
Summary:
Although the question asked involves matters of substantive law regarding evidentiary privileges which generally are not considered by this Committee, there are important ethical issues in this question which need to be addressed. Generally, a client's address communicated in confidence to the attorney is information that should not be voluntarily revealed to third parties unless the client first consents to the disclosure after full discussion and explanation of the circumstances surrounding the disclosure. If the lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, the lawyer is required to invoke the attorney-client privilege when applicable. If the court finds the privilege inapplicable, the attorney may ethically comply with the court's order and disclose the client's whereabouts.
Opinion:
In Advisory Opinion No. 90-14, this Committee indicated that the identity of a client and the amount of work which the attorney does for the client may not be voluntarily revealed to third parties by the attorney without first obtaining the client's consent to disclosure after full explanation of the circumstances regarding the disclosure. This Committee cited ABA Informal Opinion No. 1287 (June 7, 1974) for the proposition that a client's name, address and telephone number are considered secrets within the meaning of D.R. 4- 101(A) of the prior ABA Model Code of Professional Responsibility.
In Opinion No. 90-14, this Committee expressly found that the identity of a client and the amount of work done for the client constitute "information relating to representation of a client" under Rule 1.6(a) of the Rules of Professional Conduct. Accordingly, this information is not to be disclosed by the lawyer to third parties unless the client consents after consultation except where disclosure is otherwise permitted under Rule 1.6. It logically follows that a client's address is also "information relating to representation of a client," such that the lawyer may be subject to discipline for voluntarily disclosing the client's address to third parties.
The committee offers no opinion as to whether the information would be subject to the evidentiary attorney-client privilege.1 If the court orders disclosure, the Committee notes that the official Comment to rule 1.6 provides that, "The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client." As this Committee stated in Advisory Opinion 90-14, "We read this Comment to mean that a lawyer does not violate the Rules by disclosing such information pursuant to a valid court order." 1 Although it is not the responsibility of this committee to advance opinions on issues involving substantive law such as the attorney-client privilege, the committee does note that the South Carolina Supreme Court has held that a client's address is generally protected by the attorney-client privilege when the address is given to the attorney in confidence. McDonald v. Berry, 243 S. C. 453, 134 S. E. 2d 392 (1964).