LEO: Attorney as Witness - Confidentiality: LE Op. 1252
Attorney as Witness - Confidentiality: Testimony on Behalf
of Opposing Party Regarding Communications Between
Counsel and Intentions of Parties.
September 27, 1989
You have asked the Committee for guidance regarding an attorney's ability
to testify as a witness for the opposing party regarding the issues of
spousal support, after being discharged by his client for whom the
attorney had prepared the property settlement agreement. The relevant
facts of your inquiry are as follows:
Attorney X represented Client A in a domestic matter wherein the parties
and counsel negotiated towards a property settlement agreement. This
included several offers and counteroffers by both parties or their
counsel. After several months, a property agreement was drafted by
Attorney X's office and forwarded to Client A who approved and executed
the same and then forwarded to counsel for Client A's husband for review
and his client's execution. Throughout the negotiations with counsel for
Client A's husband and prior to the execution of the property agreement by
both parties, Attorney X and opposing counsel discussed the issue of
spousal support and agreed that the property settlement agreement should
be silent as to support. Attorney X discussed the matter with Client A and
recommended that she waive the spousal support in light of the parties'
income level and the favorable terms in the property agreement which
Client A was receiving.
Approximately a month later, Attorney X was discharged by Client A who
appointed a new attorney to represent her in further proceedings regarding
the issues of spousal support. Subsequent to the motion for spousal
support filed by Client A's new attorney, Attorney X was subpoenaed as a
witness by counsel for Client A's husband to testify as to the intentions
in the agreement between counsel and the parties that there would be no
spousal support in the property agreement. Client A's new attorney has
objected to Attorney X's testimony based on the attorney/client
Under DR:4-101, a "confidence" refers to information protected by the
attorney/client privilege under applicable law, and a "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 be likely to be detrimental to the client.
Whether the communications described fall under the attorney/client
privilege is a question of law upon which this Committee may not opine.
However, it is the opinion of the Committee that the testimony of Attorney
X regarding his communication with opposing counsel would not be improper
since the information to be offered relates solely to the intent of the
lawyers and the existence of an agreement between the parties.
Committee Opinion September 27, 1989
See also LE Op. 1352.