March 16, 2016 – What are the obligations of a lawyer upon receiving a subpoena for client documents?

Question

Three years ago, Attorney prepared an estate plan for Elderly Client who has since developed dementia. At the time of the estate planning, Elderly Client explained to Attorney why he did not want his two adult children to get anything, and Attorney documented the explanations in the file. Elderly Client named his close friend as the personal representative of his estate, and also made plans for his care in the event of illness or incapacitation.

Elderly Client’s two adult children, through their counsel, requested the file from Attorney for the purpose of managing Elderly Client’s funds and person. Attorney refused to give the file to the adult children’s counsel, and counsel has now subpoenaed the file.

What are the Attorney’s ethical obligations?

Answer

Absent a court order or subpoena, an attorney who prepared estate-planning documents for an elderly client who has since developed dementia must generally resist providing those materials to a guardian, conservator, heirs, or other lawyers who request the documents to resolve disputes or litigation over the management of the elderly client's funds or person.¹

SCR 20:1.6(c)(5), however, permits a lawyer to disclose information relating to the representation of a client “to comply with other law or court order.” ABA Formal Opinion 473, issued in February 2014, concluded that a lawyer “must obey a court order, subject to any right to move the court to withdraw or modify the order or to appeal the order.²

But a lawyer facing a court order requiring the disclosure of client confidential information still is faced with complex, critical and fact-intensive questions on how to respond – e.g., what challenges should be considered, what specific information should be disclosed, and what protective measures should be sought.³

A lawyer receiving a subpoena or other compulsory process for documents or information relating to the representation of a client has several obligations. These obligations are discussed in ABA Formal Opinion 473.

First, if the client or former client is available, SCR 20:1.4 requires the lawyer to consult with the client or former client.⁴ SCR 20:1.4 directs the lawyer to “promptly inform the client of any decision or circumstance with respect to which the client's informed consent.” SCR 20:1.6(a) permits a lawyer to disclose information relating to the representation of the client with the client’s informed consent. Informed consent, as defined in SCR 20:1.0(f), requires the lawyer to adequately explain the material risks of and the reasonably available alternatives to the proposed course of conduct. The lawyer is also required by SCR 20:1.4 to “explain [the] matter to the extent reasonably necessary to permit the client to make informed decisions.” While the content of the consultation with the client or former client will depend on the specific circumstances, it should include, at a minimum: a discussion of the protections provided by the attorney-client privilege, the work product doctrine, and other protections and immunities; a discussion of the protections afforded by SCR 20:1.6; and a discussion of any other relevant matter.⁵

Second, 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.⁶

Third, if ordered 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.⁷ If disclosure is ordered and the client is unavailable for consultation, the lawyer is not ethically required to appeal.⁸

Fourth, 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 SCR 20:1.16 (b).⁹

Fifth, when disclosing documents and information – whether in response to an initial demand or to an order, and whether or not the client is available – the lawyer may reveal information only to the extent reasonably necessary.¹⁰

Sixth, 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.¹¹

In some situations, lawyers may want to consider including certain provisions in the engagement letter or agreement, such as an agreement by the client to keep the lawyer informed on how to contact the client after representation has ended. Lawyers may also want to consider including instructions from the client on how the lawyer should respond to certain requests for information.

Endnotes

¹ Tenn. Supreme Court Bd. of Prof'l Responsibility, Formal Op. 2014-F-158 (2014).

² ABA Formal Op. 473. SCR 20:3.4(c) states that a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal, except for an open refusal based on an assertion that no valid obligation exists.”

³ ABA Formal Op. 473 [footnotes omitted].

⁴ “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.” ABA Formal Opinion 473.

⁵ ABA Formal Op. 473.

⁶ ABA Formal Op. 473. ABA Comment [13] following SCR 20:1.6 states:

[13] A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court's order.

⁷ Id.

⁸ ABA Formal Op. 473 explains:

Requiring a lawyer to take an appeal when the client is unavailable places significant and undue burdens on the lawyer. An appeal costs money and takes time away from other clients. Taking an appeal on behalf of an unavailable client forces the lawyer to act without consultation and direction. While such clients need and deserve protection in response to an initial demand - to avoid improper and unjustified access to information and documents that the rules protect even after the client’s death - the balance changes once a court or other tribunal has ruled on the lawyer’s initial objection.

⁹ ABA Formal Op. 473. ABA Comment [2] to SCR 20:1.2 provides in part:

[2] …. The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement. If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See Rule 1.16(b)(4). Conversely, the client may resolve the disagreement by discharging the lawyer. See Rule 1.16(a)(3).

¹⁰ ABA Formal Op. 473. SCR 20:1.6(c) specifically states that a lawyer may reveal information only “to the extent the lawyer reasonably believes necessary.” ABA Comment [16] to SCR 20:1.6 states that a lawyer is permitted to disclose information “only to the extent the lawyer reasonably believes the disclosure is necessary to accomplish one of the purposes specified.”

¹¹ ABA Formal Op. 473. .” ABA Comment [16] to SCR 20:1.6 provides in part: “If the disclosure will be made in connection with a judicial proceeding, the disclosure should be made in a manner that limits access to the information to the tribunal or other persons having a need to know it and appropriate protective orders or other arrangements should be sought by the lawyer to the fullest extent practicable.”