The Florida Bar

December 10, 1971

During a court hearing on his right to an attorney's lien, an attorney may reveal matters otherwise privileged in order to establish his claim and to defend himself against an accusation he had hindered the clients' cause, even though his testimony may be detrimental to his former clients' interests on the merits.

CPR: DR 4-101(C)(3)

Chairman Clarkson stated the opinion of the committee:

The issue raised by this ethics inquiry might well be phrased whether the attorney-client privilege can be used as a sword instead of a shield.

A group of individuals retained the inquiring lawyer to represent them in the purchase of real property. When the seller refused to convey, the lawyer brought an action for specific performance. The clients were advised from the beginning that they would be required to allege and prove their ability to pay the funds due at closing.

Shortly before the date set for final hearing in the cause, the clients informed their attorney that they were not able to raise the money necessary to close and requested additional time. The case was continued for another reason. Thereafter, the clients became involved in disagreement as to their individual rights and duties. During the period of disagreement they indicated to the lawyer that they would like to conceal from the court their inability to tender closing funds and proceed with the cause anyway.

To resolve pending difficulties, the lawyer scheduled a meeting of all the clients, but none appeared. Upon learning that some of them were consulting other counsel, the lawyer wrote the group and advised of his intention to withdraw. Ultimately, the court granted permission to withdraw and the lawyer, after first submitting a bill for legal services to his former clients, sought a lien in the pending action. New counsel, although having been made aware of his clients' inability to produce closing funds and of their conflicting positions, filed a motion to deny the first attorney a charging lien, alleging that he had hindered prosecution of the cause rather than advancing it.

The court ruled that it would hear testimony on the right to an attorney's lien before proceeding with the merits of the action. The initial attorney has advised the court and new counsel that he will be compelled to reveal matters otherwise protected by the attorney-client privilege in order to establish his claim and defend himself against the accusation of detrimental conduct. He has also stated that such matters may be detrimental to his former clients' interests on the merits. Because of these circumstances he has asked new counsel to withdraw the charges of improper conduct so that he may proceed to establish his right to compensation in a separate action. Nonetheless, the new attorneys refuse to withdraw their allegations and have stated their intention to rely upon the attorney-client privilege in defending against the lien.

Under the facts as stated we are asked whether the first attorney may reveal the true situation to the court in order to establish his right to an attorney's lien and to defend himself against the charges of improper conduct.

The Committee unanimously concludes that he may do so. DR 4-101(C)(3) is controlling. The fact that his testimony may jeopardize his former clients' right to recover on the merits is a by-product removed from his control. Of course, admissibility of the testimony will be passed upon by the court.

[Revised: 08-24-2011]