The ABA/BNA Lawyers’ Manual on Professional Conduct™ is a trusted resource that helps attorneys understand cases and decisions that directly impacts their work, practice ethically, and...
By Joan C. Rogers
Feb. 17 — An attorney subpoenaed for protected information about a client she can't reach must challenge the demand and seek protective orders if disclosure is ordered, but is not obligated to appeal, the ABA ethics committee concluded Feb. 17.
The opinion offers guidance to lawyers whenever they receive a subpoena or other compulsory process for documents or information about current or former clients.
It updates and expands a 1994 ABA ethics opinion by answering additional questions that have come up, including what to do if the client is unavailable or if the lawyer and client disagree on how to respond, how much disclosure to provide once the court rejects challenges, and whether the lawyer should seek protective orders.
Law offices may want to address issues relating to subpoenas in retainer letters, the committee suggested.
Model Rule 1.6(a) generally prohibits disclosure of client information without the client's informed consent, but Rule 1.6(b) permits it to the extent the lawyer reasonably believes necessary to comply with a court order. In addition, Model Rule 3.4(c) requires lawyers to obey court orders.
Those rules don't tell the whole story about what a lawyer must do when a subpoena or court order demands disclosure of confidential client information, the opinion makes clear.
When she gets a demand for client information, the lawyer must notify the client—or at least try to, the committee said. For former clients, the lawyer must make reasonable efforts to reach them through means such as e-mail, phone, letter and Internet search, and should document those efforts.
If the client is available, the committee said, the lawyer must consult with the client as required by Model Rule 1.4 (communication) about how to respond to the demand. At a minimum, it advised, the lawyer should describe the protections Rule 1.6 affords and explain whether and to what extent attorney-client privilege or other protections may apply.
The lawyer also should go over any other relevant matters, such as whether the subpoena is valid, whether disclosure may lead to criminal liability for the client and whether the client may assert the Fifth Amendment privilege against self-incrimination, the committee said.
The committee advised that if instructed by the client or if the client is unavailable, the lawyer must assert all reasonable claims against disclosure, and must try to limit the subpoena or demand on any reasonable ground.
If the court orders disclosure of confidential or privileged information, it said, the lawyer must consult with the client if possible about whether to produce the information or appeal.
The lawyer should consider withdrawing under Model Rule 1.16 if the client and lawyer disagree about how to respond to the initial demand or to an order requiring disclosure, the committee said.
The opinion states that when disclosing documents or client information—whether in response to an initial demand or a court order—the attorney may reveal information only to the extent reasonably necessary.
The lawyer should seek appropriate protective orders or other arrangements to the fullest extent practicable, the committee advised, so that only the tribunal ordering disclosure and others with a legitimate need to know have access to the material.
Counsel is not ethically required to appeal when a tribunal orders disclosure and the client cannot be located after due diligence, the committee said.
Although ABA Formal Ethics Op. 94-385 (1994) spoke of complying with a “final” order, Model Rule 1.6(b)(6) and Comment  discussing the rule do not use that word, the panel noted. It said this omission was intended to relieve lawyers from the added burden of pursuing an appeal or “final” disposition, unless appropriate arrangements are made with an available client.
Especially when a client is unavailable, requiring a lawyer to take an appeal places significant hardships on the lawyer and forces her to act without input from the client, the committee said. Although absent clients need protection from an initial demand to avoid unjustified access to protected information, the balance changes once a tribunal has ruled on the lawyer's objections, it said.
The committee advised that where the client is unavailable to make retention and fee arrangements, the lawyer is nevertheless obligated to challenge the demand in the first instance.
However, “Where the client is available, the lawyer is not required to act without a fee but arrangements regarding the scope of the work and fee arrangements must conform to the relevant rules,” the opinion states.
Lawyers may consider providing for these situations in their initial retainer letters, the committee said, by including provisions stating that:
The committee noted that a lawyer may sometimes be required to challenge the initial demand even when no fee agreement has been reached.
In a footnote, it cited a District of Columbia bar ethics opinion which noted that lawyers are ethically required to take steps to protect the attorney-client privilege even if not compensated for their services.
In this situation, the committee suggested, a lawyer may seek to withdraw. It also noted the possible availability of a later suit for quantum meruit, but said that's a legal issue beyond its jurisdiction.
To contact the reporter on this story: Joan C. Rogers in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Kirk Swanson at email@example.com
• An attorney subpoenaed for information about a client she can't reach must resist disclosure but isn't required to appeal.
• Lawyers should cover the subject of subpoenas in their retainer letters.
• This opinion updates and expands guidance the ABA ethics committee provided 22 years ago.
Copyright 2016, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)