An Attorney’s Duty of Confidentiality: Responding to a Subpoena for Client Files

On February 16, 2016, the ABA issued Formal Opinion 473, which revisits Formal Opinion 94-385 that was issued in 1994. In 1994, Model Rule 1.6(b), provided only two instances when a lawyer could disclose confidential information in response to a subpoena—to protect against certain crimes and to establish certain claims or defenses on behalf of the lawyer.

 

Today, Model Rule 1.6(b) lists seven exceptions that permit, but do not require, an attorney to disclose client information, one of which is in compliance with a court order. Although Formal Opinion 94-385 acknowledged an attorney’s obligation to take measures to protect the confidentiality of a client, Formal Opinion 473 addresses concerns that have arisen over the past 21 years and provides guidance regarding the disclosure of client information pursuant to a court order.

 

For example, the opinion suggests that after receiving the initial demand, an attorney should first consult with his client to discuss possible courses of action. During this consultation the attorney should advise on the potential claims that may be asserted against disclosure, as well as the possible consequences disclosure may have for the client. If the lawyer and client disagree about how to respond to the demand, the lawyer may withdraw in compliance with Model Rule 1.16, but must protect the client’s interest until the client obtains another attorney.

 

If the client is unavailable for consultation, or if the client consents to disclosure, an attorney must nonetheless “assert all reasonable claims against disclosure and seek to limit the subpoena.” If the attorney is unable to locate his client, further appeal is not ethically required because it places an undue burden on the lawyer. Regardless, if the attorney is ultimately ordered to produce a client’s documents, the attorney must reveal confidential information only to the extent that is reasonably necessary.

 

 

To read Formal Opinion 473, click here.

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