Discovery is a critical component of any personal injury case. Lawyers send interrogatories, request independent medical examinations, notice depositions, and request documents during this fact gathering stage. Most obviously, defense counsel requests a copy of the plaintiff’s medical records. And, when the current litigation is not the plaintiff’s first personal injury case, defense counsel will want access to the plaintiff’s medical records, case file, and law enforcement reports gathered during the past personal injury lawsuit. To this end, defense counsel may serve a subpoena on the plaintiff’s former counsel requesting the lawyer produce the plaintiff’s case file from the first lawsuit.
May the lawyer receiving the subpoena produce the client’s case file in response to the subpoena?
Probably, but only if the lawyer obtains informed consent from the client or the subpoena is a valid court order. See La Rules of Prof’l Conduct, r. 1.6; see also La. Code Evid, art. 508(A). Here are a few simply rules to aid in determining when a lawyer can produce the client’s file in response to a subpoena:
- As a preliminary matter, the client’s file is information relating to the representation of the client. For this reason, the materials in the client’s case file are confidential information under Louisiana Rule of Professional Conduct Rule 1.6. See La. Rules of Prof’l Conduct, r. 1.6. The lawyer shall not reveal this information unless “the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted” by the rules. See id.
- The Rules of Professional Conduct provide that a lawyer can reveal confidential client information when the lawyer obtains the client’s informed consent. Under these rules, “’[i]Informed consent’ denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” See La. Rules of Prof’l Conduct, r. 1.0(e). If the client consents, the lawyer may produce the client file in response to the subpoena.
- The Rules of Professional Conduct provide that a lawyer can reveal confidential client information when the lawyer reasonably believes the disclosure is necessary “to comply with other law or a court order.” A subpoena duces tecum issued to a lawyer for a client’s file is a valid “court order” when the issuing lawyer complied with the requirements of Louisiana Code of Evidence article 508(A). See La. Code Evid. Art. 508(A). Article 508(A) requires that before a subpoena can issue to a lawyer, the court must hold a contradictory hearing to determine whether the information sought is not protected from any applicable privilege and other criteria, such as showing that the information is essential to the case and there are no other alternative means of obtaining the information, are met.
- The client or former client must receive notice of the time, place, and substance of the hearing and have an opportunity to fully participate in that hearing. See La. Code Evid. Art. 508(C). Absent such notice, the “determination that a lawyer-client privilege is not applicable to the testimony shall not bind the client or former client.” Id; see also Mandy Dardar v. Gary Dardar, No. 2121 CW 0424 (La. App. 1 Cir. 6/7/21).
The Louisiana First Circuit Court of Appeals recently reinforced these basic principals in the writ disposition vacating the district court’s order instructing a lawyer to turn over his client file. See Mandy Dardar v. Gary Dardar, No. 2121 CW 0424 (La. App. 1 Cir. 6/7/21). The First Circuit concluded that it was appropriate to vacate the district court’s order because the “hearing held herein on the defendant’s motion to produce failed to comply with the requirements of La. Code of Evid. art. 508(C).” Id.
In conclusion, a lawyer’s duty of confidentiality is significantly broader than many lawyers understand. Because Rule 1.6 prohibits a lawyer from revealing “information relating to representation of a client,” it is not limited merely to matters communicated in confidence by the client. See ABA Model Rules of Prof’l Conduct r. 1.6 cmt. 4. Thus, this rule prohibits disclosure of confidential information from any source, including from third parties and from documents prepared by third parties. This includes producing the entirety of the client’s file. Even in response to a subpoena duces tecum, a lawyer must not hand over the client or former client’s file until the lawyer obtains the client’s informed consent or after ensuring that the subpoena is a valid court order. The subpoena will not be a valid court order unless the issuing lawyer complied with La. Code of Evidence art. 508’s requirement that the court hold a contradictory hearing.