ABA Publishes New Ethics Opinion on Subpoenas for Client Documents

ABAOn February 17, 2016, the ABA Standing Committee on Ethics and Professional Responsibility published Formal Opinion 473 addressing a lawyer’s “Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information.” See ABA Formal Op. 473 (Feb. 17, 2016).

ABA Model Rule of Professional Conduct 1.6(b)(6) permits a lawyer to disclose otherwise “confidential” client information “to comply with other law or court order.”1 See ABA Model Rule of Prof’l Cond. Rule 1.6(b)(6). However, the rule leaves open “complex, critical, and fact-intensive questions on how to respond.” Addressing some of these questions, the new opinion advises that a lawyer who is ordered to divulge client documents or information should do the following:

  1. The lawyer must notify, or make a reasonable attempt to notify, the client or former client of the demand. Among other efforts, the lawyer should consider an “internet search, phone call, fax, email or . . . letter to the client’s last known address.”
  2. The lawyer must consult with the client about how to respond. Such a consultation might involve a discussion regarding the applicability of the attorney-client privilege, the work-product doctrine, and the Fifth Amendment privilege against self-incrimination.
  3. If the client wishes to “challenge the demand,” the lawyer should do so “on any reasonable ground.” If the challenge fails, the lawyer should consult with the client about appellate options.
  4. As to fees, the lawyer should consult with the client regarding whether the scope of work called for by the original lawyer-client fee agreement included responding to the demand, and if not, what the lawyer’s fee will be for doing so. Nevertheless, the lawyer may still “be required to challenge the initial demand” even if no fee agreement is reached with the client.2
  5. When the lawyer cannot find the client, the lawyer must “assert all reasonable objections and claims when the lawyer receives the initial demand.” If those “objections and claims” are thereafter rejected by the tribunal, the lawyer must produce the information to the extent reasonably necessary to comply with the order. However, the lawyer’s obligations end there: “[a] lawyer is not ethically required to take an appeal on behalf of a client whom the lawyer cannot locate after due diligence.”
  1. Note that Louisiana’s version of this rule is identical to the ABA model rule with regard to this issue.
  2. The opinion recommends that a lawyer “should consider” providing for these situations in the lawyer’s retainer agreements.
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