LEO 1252

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

confidentiality privileges.

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

CROSS REFERENCES