(This article appeared in Journal 15,1, March 2010)
The protection of client confidences is one of the most significant responsibilities imposed on a lawyer. Rule 1.6(a) of the Rules of Professional Conduct provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless (1) the client gives informed consent; (2) the disclosure is impliedly authorized; or (3) one of the exceptions set out in Rule 1.6(b) applies. The confidentiality rule applies not only to matters communicated in confidence by the client, but also to all information acquired during the representation, whatever its source.
One of the exceptions set out in Rule 1.6(b) provides that a lawyer may reveal confidential information to comply with "the law or court order." See Rule 1.6(b)(1). Because compliance with a subpoena is required by law, a lawyer who is served with a subpoena may reveal information that would otherwise be protected under Rule 1.6(a). However, the lawyer continues to have an obligation to protect privileged information. Although the concepts of confidentiality and attorney-client privilege are often used interchangeably, privilege applies to a much narrower category of client information. The lawyer must assert the privilege on behalf of the client and must make all nonfrivolous arguments that the information is protected by the attorney-client privilege or other applicable law. See Comment [14] to Rule 1.6. The lawyer's professional obligation is to resist disclosure of privileged information until a court has determined that disclosure is in fact required by law. In the event the court orders disclosure, the lawyer must consult with the client about the possibility of appeal. Unless review is sought, Rule 1.6(b)(1) permits the lawyer to comply with the court's order.
A lawyer who is served with a subpoena should first determine whether the client consents to the disclosure. The lawyer should discuss the subpoena and its ramifications with the client. If the client has no objection, the lawyer may disclose all of the information requested by the subpoena.
If the lawyer is unable to obtain the client's consent, to comply with the law the lawyer may produce anything that is not privileged. As to information that the lawyer believes is privileged, the lawyer should make a motion to quash, make a motion to modify, or specifically object to the production of the privileged information. The lawyer should err on the side of objecting if the lawyer is unsure whether certain information is privileged. In addition, the lawyer should only produce what is necessary to comply with the subpoena. The lawyer should inform the client that the lawyer may be obligated to reveal information if required to do so by court order.
After a ruling on the privilege issue, the lawyer may produce information required by the court's order, unless the client requests an appeal. The disclosure should again be no greater than necessary to comply with the order. The lawyer can still refuse to disclose the information without violating the ethics rules because Rule 1.6(b) provides that the lawyer "may reveal" the protected information. However, the lawyer may face contempt charges for disobeying the court's order.
If the lawyer no longer represents the client, the lawyer does not have to expend his own money to appeal, etc., but the lawyer does have to assert the privilege. However, once a court order is entered, the lawyer is not required to file an appeal. If the client is represented by a new lawyer, the subpoenaed lawyer should notify the new lawyer of the need to discuss filing appropriate motions or an appeal with the client.
The lawyer should also contact his malpractice insurance carrier. Some carriers choose to have a lawyer present at depositions or hearings to make sure an insured does not inadvertently disclose information unrelated to the deposition matters or otherwise. Or, the lawyer may want to hire his own lawyer to advise him about what materials are privileged and should, therefore, not be produced in response to a subpoena, or to represent him at a deposition or hearing.
Suzanne Lever is assistant ethics counsel at the State Bar.