On occasion bar counsel will receive an informal inquiry from a lawyer who has been served with a subpoena requiring the lawyer to appear at a deposition with a former client's file in connection with an unrelated civil matter. The circumstances might involve something like the following. The lawyer previously represented a client in a business transaction. Now the client is getting divorced, and the client's spouse is seeking information related to the prior business transaction. The spouse's counsel has issued a subpoena seeking the lawyer's file. The lawyer hasn't heard from his client in years, and wants to know what he should do.
At the outset, the lawyer should review Rule 1.6 of the Massachusetts Rules of Professional Conduct concerning confidentiality of information. Paragraph (a) of Rule 1.6 states that "[a] lawyer shall not reveal confidential information relating to representation of a client unless the client consents after consultation . . .." As Comment 5 to Rule 1.6 clarifies, this rule applies "not merely to matters communicated in confidence by the client but also to virtually all information relating to the representation, whatever its source."
Rule 1.6(e) permits a lawyer to reveal confidential information relating to the representation of a client "when permitted under these rules or required by law or court order." Mass. R. Prof. C. 1.6(b)(4). This does not mean that the lawyer may simply turn over the client's file when he receives the subpoena. The lawyer has an ethical obligation to attempt to limit the subpoena on any legitimate available grounds, and, without client approval, may not reveal confidential information protected by Rule 1.6(a) until ordered to do so by an appropriate tribunal. ABA Comm. on Professional Ethics and Grievances, Formal Op. 94-385 (1994) advises that lawyers have an ethical obligation to oppose subpoenas directing them to produce client files, at least until a court orders compliance. See generally Restatement (Third) of the Law Governing Lawyers ß 63 (2000) (disclosure of confidential client information when required by law is permitted "after the lawyer takes reasonably appropriate steps to assert that the information is privileged or otherwise protected against disclosure"); ABA/BNA Law. Manual on Prof. Conduct 55:1300 Confidentiality: Lawyer Subpoenas, at 1314 (1997) (citing state ethics opinions that also require a lawyer to take steps to resist a subpoena for information about a client if the client does not consent to the disclosure). Cf. MBA Ethics Opinion No. 94-7 (where a client has refused to consent to disclosure, a lawyer should resist disclosure of a client's identity in response to an IRS summons, or in any subsequent enforcement proceeding, until a court orders disclosure).
To meet the ethical obligations under Rule 1.6, the lawyer should first attempt to contact the former client to determine whether the client consents to the disclosure. To be effective under Rule 1.6(a), the client's consent must be "after consultation." The term "consultation" is defined in Mass. R. Prof. C. 9.1(c) to mean "communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question." Exactly what information should be discussed with the client may depend upon the circumstances. Subpoenas issued in criminal proceedings are beyond the scope of this article, but 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. Although the disciplinary rules do not require that the client's consent to the disclosure be in writing, the prudent lawyer should obtain written permission from the client to disclose confidential information.
If the former client has retained counsel to represent him in the new matter, the lawyer's first contact should be with the client's new attorney. As a practical matter, the client through his new attorney may wish to oppose the subpoena, and may take steps to do so. In any event, the client's new attorney may be able to shed some light on the subjects at issue in the new civil matter.
If the former client does not consent to the disclosure, or in those rare instances when the lawyer cannot locate the client, the lawyer has an ethical duty under Mass. R. Prof. C. 1.6(a) to resist the subpoena if the lawyer's testimony or the production of documents would violate either the attorney-client privilege or the ethical duty of confidentiality. As an initial step, the lawyer should seek a protective order, bring a motion to quash, or serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials in compliance with the applicable discovery rules, such as Mass. R. Civ. P. 26(c), 45(b), and 45(d)(1). The lawyer should seek to limit the subpoena or court order on any legitimate available grounds, such as the attorney-client privilege, work product doctrine, confidentiality, relevance, breadth, or burden. See Rent Control Board of Cambridge v. Mary Praught, 35 Mass. App. Ct. 290, 296-297 (1993) (because the "role of lawyer does not constitute a cloak of immunity against subpoena," a lawyer cannot seek to resist the subpoena entirely; instead the lawyer should seek to limit the subpoena on the grounds of privilege or on some other basis).
If the lawyer's request for a protective order is denied, the lawyer should consider whether the circumstances warrant filing an appeal. Comment 20 to Mass. R. Prof. C. 1.6 advises that in making this determination, the lawyer should consider such factors as "the gravity of the harm to the client from compliance and the likelihood of prevailing on appeal."
Comment 20 to Mass. R. Prof. C. 1.6 advises that a lawyer must comply with the final orders of a court or other tribunal requiring the lawyer to disclose confidential information about the client's representation. The language of Mass. R. Prof. C. 1.6 itself makes disclosure discretionary. However, failure to disclose confidential client information in face of a final order of a court or other tribunal may result in a court holding that the lawyer is in contempt.
In summary, if you are subpoenaed to testify or produce a client's file, check the ethical rules, consult with the client, and be prepared to take appropriate action to protect your client's confidences.