A few months ago, I wrote a post about a frustrating Tennessee Ethics Opinion that offered guidance on lawyers’ obligations when responding to a subpoena for client information by, in part, treating a subpoena as if it were a court order.
Last week, the ABA issued Formal Opinion 473, Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information, that does not suffer from any such mixed-up approach. Instead, the ABA opinion does a fairly good job of providing a structured analysis for lawyers to follow in an overwhelming majority of jurisdictions and even manages to strike what seems like exactly the right balance on thorny issues that can arise when the subject matter of the subpoena relates to a former client with whom the lawyer is no longer able to effectively communicate.
Opinion 473 revisits ground previously addressed more than 20 years ago in ABA Formal Opinion 94-385 and revises its prior guidance to address several vexing questions lawyers can face when on the receiving end of a subpoena.
Even though Model Rule 1.6(b)(6) grants a lawyer discretion to disclose confidential client information in order to comply with a court order, there are still complicated questions that a lawyer must answer with respect to taking such action and, more importantly, responsibilities to a client or former client that hopefully can be navigated at an earlier time in the process — presumably, a subpoena or other demand from someone seeking the materials made to the lawyer prior to entry of any such order. (The opinion – as mentioned below – suffers a bit from not dividing out its guidance for situations in which the lawyer first learns of the situation upon receipt of an order as opposed to something else, but clearly is intended to propose that if the lawyer’s first knowledge comes in the form of an order that the lawyer ought to pursue a similar course of consultation with the impacted client/former client, even if the mechanics of seeking a reconsideration of the court order might be more difficult than a motion to quash or for a protective order at an earlier stage of the proceedings.)
The opinion lays out the lawyer’s obligations to notify, or at least attempt to notify, the client/former client and, if the lawyer is able to successfully reach the client/former client, the obligation to consult about how the client or former client wishes for the lawyer to proceed. Model Rule 1.6(a) makes clear that, with informed consent, the client or former client can simply authorize the lawyer to just provide the materials sought by the subpoena and that would be that. Before the client would provide the green light to comply though, the opinion highlights that the lawyer should, as the “informed” part of that consent, be certain that the client/former client is counseled about available privilege and work product protections, as well as confidentiality protections under RPC 1.6 itself. At the same time, the opinion serves to remind the lawyer to be mindful of situations in which there may be downstream repercussions for the client if the information in the materials is disclosed to others.
Once the appropriate level of consultation occurs, if the client wants to oppose compliance with the subpoena, then:
the lawyer should, as appropriate and consistent with the client’s instructions, challenge the demand on any reasonable ground. If, after making the challenge, the court or other tribunal rules against the motion to withdraw or modify the order or demand for production, “the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4.” If the client decides not to appeal and gives informed consent to disclosure, the lawyer must produce the documents and information consistent with the client’s instructions and as described in Part IIC of this opinion.
Now, the heart is in the right place with this guidance, even if the execution is a bit lacking. The opinion muddies things up by attempting to address two separate situations at once (situation #1 would be where an order has already gone down before the lawyer ever has the chance to consult with a client; situation #2 would be in trying to determine whether a client will oppose something like a subpoena before any order is ever entered) and, thus, the second sentence in that quote seems confusingly out of context. Also, I’m pretty sure the committee means to reference IID — Complying With the Court Order — not IIC — Where the Client Is Unavailable for Consultation.
Opinion 473 also discusses an often overlooked practical point involving such situations in the real-world: who pays for the lawyer’s time and trouble in dealing with this situation? The opinion, on that front, strives to be about as helpful as it can be on that issue, but, the topic that really matters is where the targeted representation is of a former client, and the lawyer’s ability to force a former client to pay for the effort is matter of contract law or quantum meruit recovery beyond the scope of the ethics rules. The opinion does suggest putting something in an engagement letter to address in advance as an option.
As to what do about clients/former clients whose whereabouts or unknown or with whom the lawyer otherwise is unable to communicate, the opinion relies upon the language of Cmt. [15] to Model Rule 1.6 to explain that the lawyer still has an obligation to assert any reasonable objections to the initial demand for the materials, explain to the court the efforts the lawyer has made, albeit unsuccessfully, to reach the former client, but ultimately can then abide by, and comply with, any court order that results.
Finally, the opinion wraps up by revising past guidance from Formal Opinion 94-385, in light of intervening changes in the language of Model Rule 1.6, to make clear that “the balance changes once a court or other tribunal has ruled on the lawyer’s initial objection,” and, if the client is unavailable to the lawyer for consultation, the lawyer is not required by the ethics rules to pursue an appeal of such an order.