Client Confidences, Motions to Withdraw, and Responding to Subpoenas for Client Information

“Of course I’m okay! God didn’t make me Irish for nothing you know!!”

~ Katherine Flynn, aka Aunt Kate

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I’ll get to subpoenas and motions to withdraw in a bit.  First, I’m going to share a story, if only because Aunt Kate would roll in her grave if I failed to acknowledge the day.

I bought my condo in 2018.  When I moved in, I found it a bit curious that the previous owners had installed flagpole mounts on both sides of the garage door.  Don’t get me wrong: I’m a fan of flags, have a bunch of them, and love to fly them as appropriate.  Still, when would I ever need to fly two flags at the same time?

Today!

As most readers know, I’m a fan of all-things Irish and most-things basketball, with the opening weekend of the NCAA tournament among my favorite basketball things. Today, then, is quite a day: the magical and rare alignment of cosmos and calendar that results in March Madness opening on St. Patrick’s Day. Frankly, Younger Me would be shocked to learn that we’re working this morning.

It gets better.

Another of my favorite basketball things is UVM basketball. Tonight, Vermont plays a winnable game in the NCAA tournament.  That alone is something that would’ve fried Younger Me’s brain.  Combine it with playing on Day 1 of the tournament on St. Patrick’s Day?  Well, frankly, Younger Me would be even more shocked to learn that it was only half & half in our coffee this morning.

All that said, I’m sure you’ve figured out what this has to do with flags. Today I’m flying two: my Irish flag and my UVM flag.  So, I’ll transition to the legal ethics portion of this post with an Irish toast to the prior owner who had the foresight to install two pole mounts:

Sláinte and Go Cats Go!

Now, back to our regularly scheduled programming.

Motions to Withdraw & Subpoenas to Disclose Client Information

Over the past few months, I’ve noticed an uptick in inquiries on each of these questions:

  1. How much can I disclose in a motion to withdraw?
  2. How do I respond to a subpoena to produce a former client’s file or to give testimony about my representation of that client?

Here’s the nutshell version of my guidance:

  1. Very little. Cite to whatever provision of V.R.Pr.C. 1.16 applies, then go from there.
  2. Very carefully. Absent client consent to produce or disclose, I suggest raising all non-frivolous defenses against production or disclosure in a motion to quash.  Then, go from there.

After responding to these inquiries, I email these blog posts to the inquirers:

  1. Stop Making Noise.
  2. Subpoenaed to Disclose Client Info?

Now, I can sense that my mother’s French-Canadian mother is not only rolling in her grave, but she’s stomping her feet and smashing her fists.  She’s realized that today’s post is not original, but a rehashing of blogs I posted years ago.  She’s blaming the laziness on my Irish gene.  Nanny, Papa’s wife, has a point.

Nevertheless, since the questions continue to come, I thought I’d share this refresher.

When moving withdraw, remember that “I want to withdraw” is not among the exceptions to V.R.Pr.C. 1.6’s prohibition on disclosing information relating to the representation of the client. That’s why I think it’s best practice for a lawyer to limit a withdrawal motion to citing whatever provision(s) of V.R.Pr.C. 1.16 apply.  Then, if the court orders further disclosure, V.R.Pr.C. 1.6(c) permits a lawyer to respond.  Stop Making Noise includes a cautionary tale of a Tennessee lawyer who clearly had grounds to withdraw, but who was sanctioned for disclosing too much in a motion to do so.

Similarly, “I’ve been subpoenaed” is not among the exceptions to V.R.Pr.C. 1.6’s prohibition on disclosing information relating to the representation of a client.  So, absent the client or former client’s consent to produce the file or to give testimony, I think best practice is to raise all non-frivolous arguments against production/disclosure in a motion to quash. Then, if a court compels production or disclosure, V.R.Pr.C. 1.6(c) permits a lawyer to comply with the court order.[1]  My blog post links to ABA Formal Opinion 473: Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information.

As always, let’s be careful out there.

Happy St. Patrick’s Day!

UVM and Irish

[1] Note: this post assumes that the subpoena issues in a matter that does not involve an allegation involving the lawyer’s representation of the client.  The analysis likely would change if the subpoena issues in connection with a case or controversy involving the lawyer’s representation of the former client.  See, V.R.Pr.C. 1.6(c) or contact me.

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