March 20, 2019 – Which duty takes priority: duty of communication to a client, or duty to the orders of a court?

Question

I represent a client in a criminal matter. The prosecutor has filed a motion asking the judge to order that certain discovery materials about the alleged victim are not shared with my client. Essentially, the prosecutor is asking the judge to order that certain discovery materials be “attorney’s eyes only.”

I have a duty of communication to my client, and if the judge enters this order, it would prevent me from fulfilling that duty.

Can the judge enter an order that would, in my view, cause me to violate the rules of professional conduct?

Answer

This is the situation that was considered in a magistrate judge’s decision in a case out of Florida.¹ One side objected to the entry of an “attorney’s eyes only” protective order with respect to certain trade secrets.

In considering the question of "whether an 'Attorneys’ Eyes Only' provision in a Confidentiality and/or Protective Order inappropriately interferes with attorney-client relationships, and whether its inclusion in such agreements generates a risk that lawyers will violate rules of ethics or professional responsibility,” the magistrate judge stated:

In the comments to this Rule, the Florida Bar specifically recognized that a court order that compels withholding information from a client, such as a Confidentiality and/or Protective Order with an "Attorney's Eyes Only" provision, is acceptable under Rule 4-1.4. ("Rules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client. Specifically, Rule 4-3.4(c) directs compliance with such rules or orders.").²

As stated in Rule 4-1.4's comments, Rule 4-3.4(c) states that a lawyer must not "knowingly disobey an obligation under the rules of a tribunal[.]" Thus, the Florida Rules of Professional Conduct unequivocally indicate that following a court order limiting disclosures to clients – such as an "Attorneys' Eyes Only" provision in a Confidentiality and/or Protective Order – is not only ethical for attorneys, it is required.

Notably, in support of this conclusion, the magistrate judge relied upon a Wisconsin case:

Likewise, in State v. Soto, 277 Wis. 2d 589, 277 Wis. 2d 589, 690 N.W.2d 25, [2004 BL 25079], 2004 WL 2339359 at *5 (Wis. Ct. App. 2004), a client accused his lawyer of violating the Wisconsin rules of ethics by agreeing to an attorneys' eyes only provision in a confidentiality agreement. The court rejected the client's position and in support quoted a note to the rule identical to the one in Florida: "Although the rule does require a lawyer to keep a client reasonably informed and promptly comply with reasonable requests for information, the rule also acknowledges: '[r]ules or court orders governing litigation may provide that information supplied to a lawyer may not be disclosed to the client.'"³

Violations of the duty of communication to clients (SCR 20:1.4) is one of the most frequent disciplinary charges in prosecutions by the Office of Lawyer Regulation, and when opposing counsel asks for an order that a lawyer be prohibited from sharing information with the client, a lawyer should resist such an order.

But these cases make the point that the duty of communication can be subordinate to the orders of a court, and a lawyer’s adherence to the orders of a court will not be considered substandard representation.

Endnotes

¹ Aging Backwards LLC v. Esmonde-White, 2016 BL 318832

² Id.

³ Id. (citing to Comment to Wisc. Sup. Ct. R. 20:1.4)