Carrie Adams v. Florence Diane Franklin, ___A.2d___, 2007 WL 1351419 (D.C.)

Brief Summary
The District of Columbia Court of Appeals held that the Rules of Professional Conduct on preserving client confidences, while broader in scope than the evidentiary rule of attorney-client privilege, do not have the legal effect of expanding the evidentiary privilege, and ordered the attorney for a plaintiff in a real estate transaction suit to give deposition testimony regarding a demand letter the defendants received. The court concluded that the information requested was not privileged or, if it was, the client had waived the confidentiality.

Complete Summary
Carrie Adams retained Leonard Koenick to bring suit against several parties alleging that they had fraudulently deceived her as to the true sale value of her property. The defendants raised the three-year statute of limitations as a bar to the suit, and relied on a demand letter they received from Mr. Koenick dated August 16, 1999. To authenticate the letter, the defendants subpoenaed Mr. Koenick for deposition. He appeared, but was instructed by Ms. Adams’ new counsel not to answer any questions, based on attorney-client privilege. Ms. Adams argued that Rule 1.6 of the District of Columbia Rules of Professional Conduct (a lawyer shall not…reveal a confidence or secret of the lawyer’s client) precluded her former attorney from being deposed on any issue regarding the former representation. The trial court disagreed and held that the information sought from Mr. Koenick, which was limited to: “1) whether the letter is authentic…; 2) whether Mr. Koenick sent the letter or caused it to be sent; 3) whether Mr. Koenick represented the plaintiff in August 1999; and 4) where Mr. Koenick learned of the information contained in the letter,” was not protected by any privilege. Id. at *1. This appeal followed.

The court on review noted that Rule 1.6 makes it clear that the “lawyer’s ethical duty to preserve a client’s confidences and secrets is broader than the attorney-client privilege.” at *1. It was not however, an “unequivocal shield” against disclosing information. Rule 1.6(d)(2)(A) states a lawyer may make disclosure when required by law or court order. Although this rule uses the word “may,” the court held that as a practical matter, the rule only made sense if it mandated disclosure of confidential information when “required” by law. Id. at *2. Rule 1.6, however, also advises the lawyer to make “every reasonable effort” to preserve the option to appeal, and Comment 26 to Rule 1.6 states that the lawyer “…should not comply with the order until the lawyer has personally made every reasonable effort to appeal the order or has notified the client of the order and given the client the opportunity to challenge it.” Id. at *3.

The court went on to state that “[A]lthough a court order to compel testimony vitiates Rule 1.6, there still exists the independent basis found in the attorney-client privilege to preclude compelled disclosure of privileged communications.” Id. at *3. The court noted that the privilege is not absolute and can be waived, and rejected the Adams argument that the ethical obligation to preserve client confidences broadens the evidentiary attorney-client privilege. 2007 WL 1351419 at *4.

The court then reviewed the categories of information sought from Mr. Koenick. Three of the four categories were not privileged because they were not based on attorney-client communications. This included whether Mr. Koenick wrote the letter, whether he had sent the letter, and whether he represented Ms. Adams in August 1999. The fourth category involved the source of information provided in the letter. The court concluded that this information was not meant to be confidential because the client, Ms. Adams, intended it to be conveyed to the defendants in the demand letter. Thus, even if it were meant to be confidential, the client waived the disclosure by allowing the demand letter to be sent to a third party. Id. at *4. For these reasons, the trial court decision was affirmed.

Significance of Case
The court in this case found that in litigation, the broader ethical rule requiring the client’s confidences be kept by the lawyer did not have the same force as the evidentiary attorney-client privilege, which was substantive law. The court reiterated that a lawyer can be compelled by a court to produce information that would otherwise be within the scope of the lawyer’s ethical duty to maintain as client confidences. The court, in a footnote, stated that the lawyer would not be required under these circumstances to wait to be found in contempt in order to preserve the issue for appeal, and Mr. Koenick had responded appropriately by advising Ms. Adams and giving her the opportunity to object, which led to this appeal.

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