At least one of you reading this headline thought something along the lines of “What lawyer would subpoena protected information from another attorney?” The answer, it seems from the uptick in calls to the State Bar of Michigan Ethics Helpline, is a lot of lawyers.
To be clear, this article focuses solely on subpoenas improperly executed by attorneys for information in another attorney’s file directly related to representation, which is covered by attorney-client privilege and MRPC 1.6. It does not cover proper uses of attorney subpoena power.1
As attorneys, we know that subpoenas are a commonly used legal tool to receive the necessary information to effectively advocate for clients. However, an attorney’s subpoena power has ethical and legal limitations. In the last year, the Ethics Helpline has received numerous calls from lawyers asking what to do when subpoenaed to “produce a full and complete copy of a client file” or testify as to protected information. Examples include:
• A prosecutor sending a subpoena to prior defense counsel in a criminal case for their “entire client file.”2
• An attorney in a divorce matter sending a subpoena for former opposing counsel’s “entire client file” when the client decided to proceed pro se.3
• A prosecutor investigating a deceased attorney’s client and sending a subpoena to the personal representative for all attorney “client files” related to specific former clients.4
• An attorney representing an injured person in civil action and sending a subpoena for the “entire client file” from the criminal defense attorney in the related criminal matter.
Another instance involved a subpoena for “all of the attorney’s IOLTA records” in an attempt to evidence how much one former client paid the attorney for services rendered in the past.5 There was a similar request for phone records; the lawyer wanted to know if the opposing party in the case actually called the law firm for a consultation.6 There are numerous additional scenarios — including deposition notices and subpoenas to testify at trial — that are directly related to the representation.
Why are lawyers subpoenaing other lawyers for files that are protected by the legal concept of attorney-client privilege and MRPC 1.6 Secrets and Confidences? My guess is that it’s just easier. All that incriminating information about the “client” is likely located in that glorious file. A simple subpoena may provide access to the holy grail of information.
STOP! Just because it’s easy doesn’t mean it’s ethical.
The lawyer considering sending a subpoena should first consider how they would react if they received a subpoena for the same information. It is likely that lawyer would be livid. Lawyers have a duty, not an option, to protect confidential client information7 — even after death of the client.8 If the sending lawyer determines that the information may be protected by MRPC 1.6 or attorney-client privilege, the lawyer should determine if the act of sending the subpoena is a violation of MRPC 8.4(a), which states that “it is professional misconduct for a lawyer to induce another to ‘violate the Rule of Professional Conduct[.]’” Following that analysis, consider alternative sources from which the information may be received.9 Finally, if there is no other option, ask the judicial officer10 to order that the subpoenaed lawyer remit only the information about the current or former client that is necessary and cannot be obtained elsewhere without undue hardship on the client.11
A LAWYER’S RECEIPT OF A SUBPOENA
Ethics Opinion RI-106 advises lawyers:
“Upon receipt of a subpoena for information about a client, a lawyer should appear and assert the lawyer-client privilege and await a ruling from the judge as to whether to disclose....The lawyer-client privilege is held by the client and cannot be waived by the lawyer.”
This opinion was published in 1991 and while the ethical analysis is still applicable, the world has changed. Now, we send subpoenas electronically and the subpoenas are usually only for production of the client file and appearance is generally not necessary.
What should the receiving lawyer do? In today’s world, professionalism and civility are incredibly important. I suggest making a call or sending an email (not a nasty one) advising the sending lawyer that compliance with the subpoena would violate the MRPC and refer them to Ethics Opinion RI-106. However, that may not be possible depending on the relationship between the lawyers.
If that doesn’t work or isn’t appropriate, other options are available. For example, if the receiving lawyer reasonably believes information could or should be provided and does not fall within the estate planning exception,12 try to work with the requesting attorney to draft an order for the court to enter declaring that only relevant documents pertaining directly to the representation (and not the entire file) may be provided in the most protective manner possible.13
If the request is for a former client’s file and the client has new counsel, ask current counsel to take steps to quash the subpoena and, where appropriate, work with opposing counsel to determine what, if anything, in the file may be subject to disclosure.
If the client is deceased, the lawyer’s obligation to maintain confidentiality does not cease.14 In some scenarios, the personal representative of the estate may waive privilege, but only when the waiver would benefit the estate.15 If the information would not benefit the estate, a court must order release of any protected client information.16 Therefore, the same recommendations provided above apply.
The recipient lawyer may file their own motion to quash and await a ruling from the judicial officer consistent with waiting for a judicial order as provided in RI-106.
WHAT IS PROTECTED?
This is a question that law students mull in professional responsibility and even plagues well-seasoned attorneys at times. Two concepts must be considered: The legal concept of attorney-client privilege and the ethical concept of confidences and secrets.17 While attorney-client privilege protects confidential communication between the client and lawyer to obtain legal advice18 and attorney work product prepared in anticipation of litigation,19 secrets include all “other information” from third parties about the client or from the client about unrelated matters. So, pretty much anything that might be embarrassing or detrimental to the client or anything the client has asked the lawyer to keep confidential is protected. For most of my former clients, that meant almost everything in my files.
Exceptions to this protection are set forth in MCR 2.302(B)(3)(a), which requires:
“showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
Therefore, the argument should be made to a judicial officer who makes the final decision regarding what is protected and what is subject to discovery.20
Do not use or provide a response to a subpoena signed by an attorney for protected information. Instead, utilize the proper legal avenues to obtain an appropriate discovery order. If you are on the receiving end of a subpoena for protected information, see RI-106 and relevant case law. If you need additional guidance or have ethical questions, call the Ethics Helpline at (877) 558-4760.