NUMBER 241 1926

Question. A & B are attorneys for the plaintiff in the case of Smith v. Jones, now pending undetermined before a referee in New York County. P & Q, the agents for the plaintiff and resident in a foreign country, have documents, the property of the plaintiff and necessary to the presentation of his case, which they refuse to deliver. A & B have been the attorneys for P & Q in New York County, in one of which an attachment is levied and in various other matters for many years. Several suits are started against P & O in New York County, in one of which an attachment is levied and in the other an injunction is applied for. P necessarily comes to New York, for the purpose of furnishing the information and verifying the papers required to vacate the attachment and defeat the injunction. P arrived on one of the larger liners and is registered at a well-known New York hotel. It is possible that arrival was reported in one or more of the daily papers, but A & D do not claim to have read any such item. P is averse, while here, to testifying in Smith v. Jones, as it will prejudice him in other relations with Jones.

In the opinion of the Committee is it permissible for A & B to utilize their knowledge of the presence of P in New York to subpoena his attendance as a witness in Smith v. Jones?

Answer. In the opinion of the Committee, the attorneys should not use information received solely from their client, P, in the course of their professional representation of P, to his detriment, and in the absence of information from other sources. As to P’s presence in New York, such attorneys should not subpoena P.


The Committee expresses no opinion as to whether they might subpoena P if they had information from other sources, nor as to the possible immunity of the witness.