Subpoenas provide a means to obtain testimony or documents from a non-party. Many lawyers routinely issue subpoenas during the discovery or trial phases of litigation. But lawyers are sometimes on the receiving end of a subpoena. This is when things get a bit tricky.
Generally a lawyer is not authorized to reveal information relating to the representation of a client. An exception, found in Model Rule 1.6(b)(6), is when a lawyer “reasonably believes necessary to comply with other law or court order.” Therefore, when a lawyer receives a subpoena for documents pertaining to a current or former client many questions may arise such as how extensive should the disclosures be? What protective measures should a lawyer seek? Or even what to do if the client and the lawyer disagree about how to respond? Fortunately the ABA provided some guidance in a recently issued ethics opinion concerning this precise issue.
First, the lawyer must notify the client or make reasonable efforts to reach the client in the case of a former client. Next, if the lawyer is able to make contact, he must then consult the client on how to respond. Items to be addressed during the consultation may include a description of the protections afforded by Model Rule 1.6, to what extent the attorney-client privilege or work product doctrine applies, whether release of the confidential information creates an exposure to criminal liability for the client or whether the requested documents contain self-incriminatory information, and whether the subpoena is valid. Following the consultation, if the client wishes to the challenge the subpoena the lawyer must do so on any reasonable grounds.
If the lawyer and client disagree about how to respond to the subpoena, and the subpoena or demand is within the scope of retention of a current client, the lawyer may seek to withdraw in compliance with Model Rule 1.16. If responding to the subpoena constitutes a new matter or pertains to a former client, and the client wishes to seek new counsel, “the lawyer should take reasonable steps to protect the client’s interest during the client’s search for other counsel.”
Where a lawyer has made reasonable efforts to notify a client of a court order, subpoena or other demand and the client is unavailable for consultation, the lawyer, “should assert on behalf of the client all non-frivolous claims that . . . the information sought is protected against disclosure by the attorney-client privilege or other applicable law.” The opinion notes that a lawyer has a duty to assert all reasonable objections. If there is a formal court proceeding the lawyer should explain his efforts to reach the client. Nevertheless, if the lawyer is ordered by the court to produce the documents he must comply.
The opinion provides helpful guidance and clarification for any attorney that has ever received a subpoena for client files. While it is important for attorneys to fulfill their ethical obligations in responding appropriately to a subpoena or court order, they must remember to also keep in mind their ethical obligations to their clients.