The attorney-client privilege is one of the oldest recognized privileges for confidential communications, and privileged communications are traditionally deemed worthy of maximum legal protection. The purpose of the privilege is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. But the privilege should be narrowly construed to protect only the purposes which it serves. Thus the privilege applies only in the following circumstances: (1) where legal advice of any kind is sought, (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.
Appellant client brought suit against appellee business entities alleging that they fraudulently deceived her as to the true sale value of her real property and induced her to sell the property at a price substantially below market value. Appellee business entities suggested that the client's claims were barred by a three-year statute of limitations. To support this defense, they noted a demand letter, which was dated more than three years before the commencement of the suit, purportedly authored and sent by the client's former attorney to many of the parties in the suit. To establish the authenticity and the client's authorization of the letter, the business entities sought to depose the client's former attorney. The trial court issued an order compelling the client's former attorney to subject himself to a deposition by the business entities. The former attorney appeared at the deposition, but did not answer questions due to the attorney-client privilege.
Did the trial court's order compelling her former attorney to subject himself to a deposition by appellees run contrary to the attorney-client privilege and the broader obligation of client-lawyer confidentiality imposed by Rule 1.6 of the Rules of Professional Conduct (2006)?
The court found that, because of the trial court's order compelling the former attorney's testimony at the deposition, D.C. R. Prof. Conduct 1.6 was no bar to the former attorney being deposed. Rule 1.6 (d)(2)(A) specifically allows, and in fact mandates, such disclosure of confidences or secrets when "required by law or court order." There is nothing discretionary about the term "required," and use of this word in the subsection clearly evidences a mandatory obligation to disclose. Additionally, whatever privilege may have protected the disclosure of the original communication was waived by the transmission of the demand letter to third parties not covered by the attorney-client privilege. Because the discrete topics of the questioning did not implicate any privileged communications, the former attorney was to answer any reasonable questions at a deposition.