What is a lawyer's ethical obligation when subpoenaed for confidential client documents?
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Attorneys should consult with clients when receiving a subpoena or other compulsory process for client documents. Attorneys generally should follow the directions of the client and assert reasonable claims against disclosure. If the attorney is unable to locate the client, then the attorney must assert nonfrivolous defenses on behalf of the client.
This guidance comes from Formal Opinion 473 (PDF) from the ABA’s Standing Committee on Ethics and Professional Responsibility. The opinion updates an earlier ethics opinion from 1994 (Formal Opinion 94-385) that was adopted before 2002 amendments to the ABA Model Rules of Professional Conduct.
In 2002, Model Rule 1.6(b) was substantially amended. One added reads: “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to comply with other law or a court order.” When the ABA released the 1994 ethics opinion, Model Rule 1.6(b) only allowed a lawyer to disclose confidential client information to prevent certain crimes or to establish claims or defenses on behalf of the lawyer.
Confidentiality rules require a lawyer to balance her different roles as an advocate for the client and as an officer of the court. When receiving a subpoena or other compulsory process, the attorney must promptly communicate with the client to comply with Rule 1.4.
The lawyer can then challenge the demand for client info “on any reasonable ground.” If the lawyer and client disagree about the appropriate response, the lawyer may seek to withdraw under Rule 1.16. The lawyer also may need to discuss fee arrangements if the demand is outside the scope of a current retention or the issue involves a former client.
When the client is not available for consultation and cannot be located, the attorney should “assert all reasonable objections and claims.” However, the lawyer is not required to appeal when the client is not available. “Requiring a lawyer to take an appeal when the client is unavailable places significant and undue burdens on the lawyer,” the opinion reads.
