I) An attorney may not be compelled to disclose information related to her representation of a client in violation of the Franklin Rules of Professional Conduct absent reasonable certainty that the client has committed a crime or fraud in furtherance of which he used the lawyer's services.
Attorney Carol Walker has been issued a subpoena Duces Tecum compelling her to testify at a Grand Jury proceeding related to a fire that destroyed her client's business Hammond Container Company.
Ms. Walker was recently retained to represent William Hammond with regard to the loss that occurred at the Hammond Container Company. Her representation of Mr. Hammond is in the preliminary stages of inquiry. Ms. Walker has had a meeting and some telephone communication with her client Mr. Hammond.
Based on the relatively recent intention of Ms. Walker in this matter, she has not gathered sufficient information or made all necessary inquiries to be able to advise her client. Pursuant to Franklin Rules of Professional Responsibility, Rule 1.6, a lawyer shall not reveal information relating to representation of her client, unless the client gives informed consent, disclosure is impliedly authorized or the lawyer reasonably believes it necessary to prevent mitigate or rectify substantial injury to the financial interest or property of another that has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services.
Ms. Walker is without sufficient information as to what occurred in order to make such a determination with respect to her client and the circumstances surrounding the loss at his property. It constitutes a violation of Rule 1.6 of Professional Responsibility for Ms. Walker to be compelled to disclose information prior to her being able to determine if the Rules of Professional Conduct would even allow it. Mr. Hammond consulted with Ms. Walker based upon a belief that the information exchanged in furtherance of the representation would remain confidential.
In United States V. Robb, the court sets forth the standard that must be applied in such a case. "There must be some evidence supporting an inference that the client retained the attorney for such a purpose. The prosecution clearly bears this burden, however, they seek to compel Ms. Walker to disclose confidential information in advance of their meeting the required standard.
II) The Franklin Rules of Evidence prohibit the disclosure of confidential communication made for the purpose of facilitating the rendition of professional legal services to the client.
Pursuant to the Rule 513 Lawyer Client Privilege of the Franklin Rules of Evidence, the privilege may be claimed by the lawyer on behalf of the client. This is a fundamental privilege which ultimately belongs to the client. At no time has Mr. Hammond authorized Ms. Walker to disclose any of the information exchanged when she undertook representation.
The only exception to this rule, is also if the services of the lawyer have obtained to aid in the commission of a crime or fraud. Ms. Walker has no basis to makes such a determination. It would undermine her ability to zealously represent her client to the best of her ability if she is compelled to disclose privileged information. It is necessary to protect privileged information unless the attorney has determined that the aforementioned exception applies. That is not the case here.
In state v. sawyer (Columbia Supreme Court) the court applied the probable cause standard in order to allow disclosure of privileged information.