
Admissibility of Evidence - Privilege - Attorney-Client Communications May Not Be Revealed To Court Absent Waiver
Counsel has an obligation to object when asked by the court to speak on behalf of his client in response to a question by the court as to what his client said or did. In addition to constituting an admission, the attorney may be violating his ethical obligation not to reveal confidential communications from the client. He has no right to reveal his client's confidences unless the client waives the attorney-privilege. An attorney, who receives a confidential communication from the client in the course of professional employment, may not disclose, or be allowed to disclose the communication, nor shall the client be compelled to disclose the communication, in any action or hearing.[1]
The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or is otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. [2]
Rule 1.6 of the Rules of Professional Responsibility governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of the client. [3]
"Confidential information" is information gained during or relating to the representation of a client, whatever its source, that is protected by the attorney-client privilege, likely to be embarrassing or detrimental to the client if disclosed, or information that the client has requested be kept confidential. "Confidential information" does not ordinarily include a lawyer's legal knowledge or legal research or information that is generally known in the local community or in the trade, field or profession to which the information relates.[4]
[1] Civil Practice Law and Rules § 4501.
[2] See Comment [3] to Rule 1.6, ABA, Annotated Model Rules of Professional Conduct, Sixth Edition, 2007.
[3] See 22 NYCRR Part 1200, Rule 1.6. See Comment [1] to Rule 1.6, ABA, Annotated Model Rules of Professional Conduct, Sixth Edition, 2007.
[4] 22 NYCRR Part 1200, Rule 1.6 (a).
Counsel has an obligation to object when asked by the court to speak on behalf of his client in response to a question by the court as to what his client said or did. In addition to constituting an admission, the attorney may be violating his ethical obligation not to reveal confidential communications from the client. He has no right to reveal his client's confidences unless the client waives the attorney-privilege. An attorney, who receives a confidential communication from the client in the course of professional employment, may not disclose, or be allowed to disclose the communication, nor shall the client be compelled to disclose the communication, in any action or hearing.[1]
The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine and the rule of confidentiality established in professional ethics. The attorney-client privilege and work product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or is otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law. [2]
Rule 1.6 of the Rules of Professional Responsibility governs the disclosure by a lawyer of information relating to the representation of a client during the lawyer's representation of the client. [3]
"Confidential information" is information gained during or relating to the representation of a client, whatever its source, that is protected by the attorney-client privilege, likely to be embarrassing or detrimental to the client if disclosed, or information that the client has requested be kept confidential. "Confidential information" does not ordinarily include a lawyer's legal knowledge or legal research or information that is generally known in the local community or in the trade, field or profession to which the information relates.[4]
[1] Civil Practice Law and Rules § 4501.
[2] See Comment [3] to Rule 1.6, ABA, Annotated Model Rules of Professional Conduct, Sixth Edition, 2007.
[3] See 22 NYCRR Part 1200, Rule 1.6. See Comment [1] to Rule 1.6, ABA, Annotated Model Rules of Professional Conduct, Sixth Edition, 2007.
[4] 22 NYCRR Part 1200, Rule 1.6 (a).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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