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Can an ex-attorney testify against his client in a divorce?

Campbell, CA |

I believe my spouse's ex-attorney could testify to my veracity and forthcomingness and to his ex-client's uncooperativeness. I also believe that he's very unhappy with his ex-client, having been stiffed on his attorney fees. Would it be unethical or unlawful for him to testify on my behalf at Trial? If not, I will call him to see if he's willing to do it.

Thanks.

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Attorney answers 5

Posted

The former client controls the attorney-client privilege. Unless s/he waives that, her former attorney cannot testify in a civil action as you describe. However, there will likely be other ways to prove what you are suggesting -- please consult with a local attorney to explore all your potential proofs here and whether or not it makes sense to raise the issues in the first place!

This answer is offered for informational purposes only and does not constitute legal advice or create an attorney/client relationship. I am licensed to practice in Michigan only. Please seek competent local legal help if you feel you need legal advice!

Posted

I think it would be unprofessional for the attorney to testify even if his former client consented, and that if would be a breach of legal ethics for him to do so if his client did not consent. Your being an honest and forthcoming person are normally irrelevant to the issues in a family law trial so the whole idea does not really have any traction.

The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

Hillary Johns

Hillary Johns

Posted

They are all right about this. I cannot imagine any attorney agreeing to testify against his client, without some sort of very comprehensive waiver. Even then, a smart, ethical lawyer wouldn't do it.

Posted

Under California law, he would only be able to do this if your ex waived attorney-client privilege. I cannot imagine why your ex would agree to do this. Whether or not he is "happy" with your ex has nothing to do with his professional duties.

www.alecrose.com

Hillary Johns

Hillary Johns

Posted

Sorry Mr. Rose. I just read your comment and we gave the same advice almost word for word (credit ought to go to you).

Posted

Absolutely not. Such testimony would be a substantial breach of an attorney's continuing fiduciary duties to a former client. No court would (or should) allow such testimony.

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Posted

Yes it is unethical, and he cannot do it.

Nothing contained in this communication is intended to be, or shall be deemed as, legal advice, counsel, or services to on or behalf of any person or any entity. Usage of the Avvo website is not intended to and shall not create any obligation or relationship between the user and the Law Office of Jemal K. Yarbrough, including but not limited to, an attorney-client relationship. Further, the communications on this website between you and the Law Office of Jemal K. Yarbrough may not be privileged or confidential. Finally, your situation may be governed by deadlines that may or may not have already lapsed, and you may lose your rights if you do or did not act within those deadlines.