The ABA Standing Committee on Ethics and Professional Responsibility issued a formal opinion addressing a lawyer’s “Obligations Upon Receiving a Subpoena or Other Compulsory Process for Client Documents or Information,” which offers the following guidance and advice:
“The lawyer’s obligations of notice and consultation upon receiving a demand for client files and information are essentially the same for current and former clients.
“First, 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. The specific efforts required to reach particular clients will depend on the circumstances existing when the lawyer receives the demand. But these efforts must be reasonable within the meaning of Model Rule 1.0(h), and should be documented in the lawyer’s files.
“The content of the consultation will depend on the circumstances. It should include, at a minimum, (i) a description of the protections afforded by Rule 1.6(a) and (b), (ii) whether and to what extent the attorney-client privilege or work product doctrine or other protections or immunities apply, and (iii) any other relevant matter. Other relevant matters include, for example, ‘to the extent that the disclosure of confidential client information in a civil proceeding may raise potential criminal liability for the client, the consequences should be explained to the client during the consultation process.’
“If, after consultation, the client wishes to challenge the demand, 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….
“The lawyer has several options and some obligations if the lawyer and client disagree about how to respond to the initial demand or to an adverse ruling, or if the client wishes to retain new counsel. For a current client, where the initial demand or the appeal is within the scope of the retention, for example, the lawyer may seek to withdraw in compliance with Model Rule 1.16. Where the initial demand or the appeal constitutes a new matter for a current client or relates to a former client and the client wishes to seek other counsel, the lawyer should take reasonable steps to protect the client’s interest during the client’s search for other counsel….
“Where the client is unavailable for consultation after the lawyer has made reasonable efforts to notify the client, the lawyer ‘should assert on behalf of the client all non-frivolous claims that . . . the information sought is protected against disclosure by the attorney-client privilege or other applicable law lipitor medication.’ The lawyer has this obligation to assert all reasonable objections and claims when the lawyer receives the initial demand.”
ABA Formal Opinion No. 473 (Feb. 17, 2016).
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