Subpoena to Disclose Client Info?

It is not uncommon for lawyers to call me after receiving a subpoena to give testimony or produce evidence related to the representation of a client.

The applicable rule is Rule 1.6.  For a primer on the rule, check out this blog post from December 2015.

The general rule is that a lawyer may not disclose information relating to a representation, absent client consent or unless the disclosure is impliedly authorized to carry out the representation.  Remember: “information relating to a representation” is all information, whatever its source, and is much broader than information covered by the attorney-client privilege. See, Rule 1.6, Comment [3]

Rule 1.6(b) sets out the instances in which disclosure of otherwise protected information is mandatory.  “Responding to a subpoena” is not one of them.

Rule 1.6(c) sets out the instances in which disclosure of otherwise protected information is permissive.  For instance, a lawyer may reveal information if required to do so by court order.  A subpoena is not a court order.

So, what I’ve done is to suggest to lawyers that they consult with the client, raise all non-frivolous defenses to disclosure, then, if ordered to disclose, consult with the client on whether to appeal.  Then, the lawyer may choose to comply with the court order or to risk the contempt hit.  See, Comment [9].  (Again, Rule 1.6(c) is permissive . . . a lawyer “may” disclose in response to a court order.)  I’ve also suggested that a lawyer who chooses to disclose should limit the disclosure to the information necessary to respond to the request.  See, Comment [14] (“in any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes is necessary to accomplish the purpose.”)

Yesterday, the ABA issued a Formal Opinion 473: “Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information.”  If you don’t have time to read the full opinion, here’s the synopsis:

• “A lawyer receiving a subpoena or other compulsory process for documents or information relating to the representation of a client has several obligations. If the client is available,the lawyer must consult the client.If instructed by the client or if the client is unavailable,the lawyer must assert all reasonable claims against disclosure and seek to limit the subpoena or other initial demand on any reasonable ground.If ordered to disclose confidential or privileged information and the client is available,a lawyer must consult with the client about whether to produce the information or appeal.If the client and the lawyer disagree about how to respond to the initial demand or to an order requiring disclosure, the lawyer should consider withdrawing from the representation pursuant to Model Rule 1.16.If disclosure is ordered andthe client is unavailable for consultation, the lawyer is not ethically required to appeal. When disclosing documents and information —whether in response to an initial demand or to an order,and whether or not the client is available — the lawyer may reveal information only to the extent reasonably necessary. The lawyer should seek appropriate protective orders or other protective arrangements so that access to the information is limited to the court or other tribunal ordering its disclosure and to personshaving a need to know.”

Finally, the ABA opinion does not involve disclosure in response to a dispute between client and lawyer.  Thus, remember that Rule 1.6(c) permits disclosure

• “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client.

I hope you come back tomorrow for Week 13 of Five for Friday!  To bone up, the old Five fro Fridays are HERE.

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