Hello and welcome to this Ethics Alert blog which will discuss the recent American Bar Association Formal Opinion 473, which provides guidance to lawyers regarding ethical duties and obligations under the Model Rules upon receipt of a subpoena or other compulsory process for client documents and information. ABA Formal Opinion 473 (February 17, 2016) is here:http://www.americanbar.org/content/dam/aba/images/abanews/FormalOpinion_473.pdf.
According to the opinion, the ABA Standing Committee on Ethics and Professional Responsibility was asked to review ABA Formal Opinion 94-385 (July 5, 1994) regarding a subpoena for a lawyer’s client files since ABA Model Rule 1.6(b)(6) was adopted in 2002 and which states that: “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 court order.”
When Formal Opinion 94-385 was issued, Model Rule 1.6(b) specifically required a lawyer to disclose confidential information in only two situations: (i) to prevent certain crimes, and (ii) to establish certain claims or defenses on behalf of the lawyer. Formal Opinion 94-385 advised that the lawyer “must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about a client.”
The opinion states that the model rule and Formal Opinion 94-385 do not address “complex, critical, and fact-intensive questions on how to respond” when the lawyer receives a subpoena or other process which is not a “final order of a court or other tribunal”. The opinion addresses these issues and provides guidance to lawyers regarding their duties and obligations. The opinion states that a lawyer who receives a subpoena or other compulsory process (but not a court order) for documents or information relating to the representation of a client (which is, of course, confidential) has multiple ethical duties and obligations, including:
- The lawyer “must notify—or attempt to notify—the client. For former clients, the lawyer must make reasonable efforts to reach the client by, for example, internet search, phone call, fax, email or other electronic communications, and letter to the client’s last known address.”
- If the client is available, the lawyer must consult with the client about how to respond. If instructed by the client (or if the client is unavailable), the lawyer must assert all reasonable claims against disclosure and seek to limit the subpoena or other initial demand on any reasonable ground. Such a consultation should include a discussion regarding the applicability of the attorney-client privilege, the work-product doctrine, and the Fifth Amendment privilege against self-incrimination.
- If the client wants to challenge the subpoena or process, the lawyer should challenge “on any reasonable ground.” If that challenge fails, the lawyer should consult with the client about appeal options.
- If there is an order to disclose confidential or privileged information and the client is available, a lawyer must consult with the client about whether to produce the information or appeal the order.
- The lawyer should seek appropriate protective orders or other protective arrangements so that access to the information is limited to the court or other tribunal ordering its disclosure and to persons having a need to know.
- If the lawyer discloses documents and information, whether it is in response to a demand or an order, and regardless of whether client is available, the lawyer may reveal information only to the extent reasonably necessary.
- If the client and the lawyer disagree about how to respond to the initial demand or to an order requiring disclosure, the lawyer should consider withdrawing from the representation pursuant to Model Rule 1.16.
- If the lawyer is unable to 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 rejected by the tribunal, the lawyer must produce the information to the extent reasonably necessary to comply with the order; however, the lawyer “is not ethically required to take an appeal on behalf of a client whom the lawyer cannot locate after due diligence.
- If there is an order to disclose and the client is unavailable, the lawyer is not ethically required to appeal.
With regard to fees for the consultation and services regarding the response to the subpoena/process, the lawyer should consult with the client regarding whether responding to the demand was included in the scope of work under the fee agreement. If not, the lawyer should discuss the fee for doing so. Regardless, the lawyer may still “be required to challenge the initial demand” under the ethics rules even if the services were not included in the initial fee agreement. The opinion states that a lawyer “should consider” providing for this circumstance in the lawyer’s retainer agreements.
Bottom line: This ABA Formal Opinion provides guidance regarding issues involving client confidentiality which lawyers confront fairly frequently and that I frequently address in my ethics presentations. The opinion’s guidance is important and should be considered by lawyers who receive a subpoena or process demanding client confidential information, regardless of whether the lawyer’s jurisdiction’s ethics rules include the specific language in Model Rule 1.6(b)(6).
Note to Florida lawyers: Florida Bar Rule 4-1.6 does not include the specific language in ABA Model Rule 1.6(b)(6) that: “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 court order”; however, Florida Bar Rule 4-1.6(d) states that: “When required by a tribunal to reveal confidential information, a lawyer may first exhaust all appellate remedies.” In addition, Florida Bar Rule 4-1.6(f) states that: “When disclosure is mandated or permitted, the lawyer must disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.”
The ethical duties and obligations regarding subpoenas and other process addressed in the opinion should apply to Florida lawyers upon receipt of a subpoena or other process to provide confidential documents/information.
Be careful out there!
If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670