ETHICS OPINION 481-1959 CONFIDENTIAL COMMUNICATIONS

NUMBER 481

QUESTION.

 

May an attorney-plaintiff, conducting a trial on his own behalf, ask his former client-defendant, during cross examination whether said defendant has ever been convicted of a crime?

 

a. What would answer be if this attorney did not acquire such information as a direct result of the former attorney-client relationship but during the period that such relationship existed.

 

ANSWER.

 

If the information as to this former client’s criminal record came to the lawyer from the client in confidence, it may not be used. Canon 6 contains the following:

 

“The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”

 

And Canon 37 provides that:

 

“It is the duty of a lawyer to preserve his client’s confidences. This duty out lasts the lawyer’s emp1oyment,”

 

and that the lawyer should not

 

“accept employment which involves or may involve the disclosure or use of these confidences, either for the private advantage of the lawyer or his employees or to the disadvantage of the client, without his knowledge and consent, and even though there are other available sources of such information.”

 

Certainly what the lawyer is prohibited from doing on behalf of others, he may not do on his own behalf.

 

The second branch of the question is not clear. If the information was acquired either as a “direct result” of the attorney-client relationship, or as an “indirect result” of such relationship, the answer would be the same as above. If the information was, however, acquired quite independently of any confidential communication from the client, it could be used, unless the previous employment involved the subject matter of the conviction in some way. “It would certainly offend the sense of propriety if an attorney who was retained in a matter which from its nature was highly confidential should, in an action for the recovery of his fees, give publicity to the very facts which he was employed to suppress” (Opinion Number 158 (1930) Ass’n of the Bar). See, also Opinion Number 508 (1939) Ass’n of the Bar; Numbers 44 {1914} and 157 {1918} N.Y. County Lawyers’ Association.

 

Dated: March 31, 1959.