ABA Clarifies a Lawyer’s Obligations in Response to a Subpoena for Client Files

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Author
Richard C. Nelson, Esq.

The ABA issued Formal Opinion 473 on February 17, 2016 revisiting the topic of a lawyer’s responsibility to protect client confidences when confronted by a subpoena or compulsory process. The issue was last addressed by the ABA in 1994 when it issued Formal Opinion 94-385 which stated that the lawyer had a responsibility to seek to limit the scope of the subpoena, or court order, on any legitimate grounds available so as to protect confidentiality of documents coming within the scope of Model Rule 1.6. Only if such efforts were unsuccessful could the lawyer turn over the documents in response to a specific “final” court order. Where available, the lawyer should undertake an interlocutory appeal, if his efforts are unsuccessful at the trial court.

While Model Rule 1.6, and the corresponding Professional Conduct Rules in Massachusetts and New Hampshire have been amended to reflect the fact that a lawyer may disclose confidential information if reasonably necessary to “comply with other law or a court order”, the lawyer remains obligated to resist disclosure. (See Massachusetts Rule 1.6(b)(VI) and New Hampshire Rule 1.6(b)(IV)). Formal Opinion 473 provides guidance in applying this Rule under particular circumstances.

Client Available for Consultation
The obligation owed to protect confidences is the same for both current and former clients. If the client, or former client, is available, the lawyer if obliged to consult with that person in a manner consistent with Rule 1.4 in order to obtain the client’s “informed consent” concerning the course of action to be followed in response to the subpoena. Consultation should include the validity of the subpoena, the protection afforded to the client under Rule 1.6, the relevant privileges and the potential adverse consequences that might arise from disclosure, including civil and criminal liability. If the consultation results in a decision to challenge the subpoena, the lawyer should do so. If the effort is unsuccessful, the lawyer should consult with the client about the possibility of an appeal. Formal Opinion 473 recognizes that the lawyer and client might disagree on the appropriate course of action. This might result in a lawyer withdrawing from representation in a manner consistent with the lawyer’s obligations imposed by Rule 1.16.

Client Unavailable for Consultation
The lawyer is obliged to make reasonable efforts to communicate with former clients about the pending subpoena or government process. Such reasonable efforts will include internet searches, phone calls and letters to last known addresses and the efforts should be documented in the lawyer’s files. In the absence of an ability to consult with the former client, the lawyer is obliged to assert, on behalf of the client, all non-frivolous arguments that the information sought is protected against disclosure by the attorney-client privilege or other applicable law.

Complying with the Court Order
Formal Opinion 94-385 required the lawyer to comply with the “final orders” of a court or tribunal. This was interpreted as requiring the lawyer to seek appellate review whenever available. However, the current version of Rule 1.6 makes no reference to a “final” order. Accordingly, Formal Opinion 473 states that the lawyer is permitted to comply with the court order and is not obliged to undertake an interlocutory appeal unless required to do so based on communication with an available client. As the Opinion notes, “accordingly, a lawyer is not ethically required to take an appeal on behalf of a client whom the lawyer cannot locate after due diligence.”

Even in response to a court order, the lawyer may produce documents and information “only to the extent the lawyer has reason to believe…is necessary.” This, in turn, requires the lawyer to seek protective orders, or make similar arrangements to limit access to the disclosed information to the extent possible.

Payment for Services
Formal Opinion 473 doesn’t give a lawyer much comfort about receiving payment for the services performed in response to a government subpoena. The Opinion merely notes that, when the work is outside the scope of a current retention, or when it relates to a former client, the lawyer may “need to discuss fee and retention agreements.” One is left to the conclusion that the obligation to protect client confidences is not conditioned upon receiving payments for those efforts. Formal Opinion 473 goes on to note that lawyers might address this issue in their initial retainer letters with clients. The letter might reflect the client’s obligation to keep the lawyer informed about how to reach the client, even after the representation has ended, the client’s obligation to respond to the lawyer’s request for instructions following receipt of a subpoena or other demand, and the client’s agreement to pay reasonable fees and costs associated with responding to subpoenas and other demands.

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