What must a lawyer do when served with a subpoena for a client's documents or information?
ABA Formal Opinion 473: Obligations on Receiving a Subpoena for Client Information
Short answer: The opinion concludes that a lawyer served with a subpoena or other compulsory process for client information must, if possible, consult the client and assert all reasonable objections, may comply with a court order disclosing only what is reasonably necessary while seeking protective measures, and is not required to appeal an adverse ruling on behalf of a client who cannot be located.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the American Bar Association's Model Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
The opinion revisits Formal Opinion 94-385 because Model Rule 1.6(b)(6), which permits disclosure "to comply with other law or court order," was adopted in 2002, after the earlier opinion. The opinion explains that Rule 1.6(b) is permissive, but that "Rule 1.6(b)(6) makes clear that a lawyer cannot argue 1.6(a) bars compliance with a court order." 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."
On receiving a demand, the opinion states the lawyer must notify, or make reasonable efforts to notify, the client, current or former, and document those efforts. Where the client is available, "the lawyer must consult the client about how to respond to the demand," explaining the protections of Rule 1.6, privilege, and work product so the client can make an informed decision under Rule 1.4. If the client wishes to resist, the lawyer should challenge the demand on any reasonable, non-frivolous ground; if a disagreement arises or the client seeks new counsel, the lawyer may consider withdrawal under Rule 1.16. Even where the client is unavailable after reasonable efforts, the lawyer must still assert all non-frivolous claims against disclosure at the initial-demand stage.
On appeals, the opinion notes that the 2002 comments dropped the prior reference to "final" orders, and reasons that "requiring a lawyer to take an appeal when the client is unavailable places significant and undue burdens on the lawyer." It concludes that "a lawyer is not ethically required to take an appeal on behalf of a client whom the lawyer cannot locate after due diligence." In any disclosure, the lawyer may reveal only what is reasonably necessary and should seek protective orders limiting access to the tribunal and those who need to know.
In practice
Under this opinion, a lawyer who receives a subpoena for client documents follows a sequence: notify the client (or document the attempt), consult an available client to obtain informed direction, and assert all reasonable objections before producing anything. The opinion holds that confidentiality under Rule 1.6(a) does not justify disobeying a court order, that any disclosure is limited to what is reasonably necessary with protective orders sought, and that the lawyer need not appeal an adverse ruling for a client who cannot be located after due diligence.
Common questions
Q: Do I have to tell my client before responding to a subpoena for their files?
A: Per the opinion, yes; the lawyer must notify, or make reasonable efforts to notify, both current and former clients and document those efforts.
Q: Can I refuse to comply by citing client confidentiality?
A: No. The opinion holds that Rule 1.6(b)(6) permits disclosure to comply with a court order and that a lawyer must obey such orders, subject to moving to modify or appeal.
Q: If the client has disappeared, must I appeal an order to produce?
A: The opinion concludes a lawyer is not ethically required to appeal on behalf of a client who cannot be located after due diligence.
Q: How much can I disclose if I am ordered to produce?
A: Only to the extent reasonably necessary, the opinion says, while seeking protective orders limiting access to the tribunal and persons who need to know.
Background and rules framework
The opinion interprets Model Rule 1.6 (confidentiality), particularly Rule 1.6(b)(6) (compliance with law or court order) and Comments [15] and [16] (consultation and disclosing only what is reasonably necessary). It applies Model Rule 1.4 (communication), Model Rule 1.9(c) (duties to former clients), and Model Rule 1.16 (withdrawal), and references Rules 3.4(c) and 8.4.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.6 (confidentiality), including 1.6(b)(6)
- ABA Model Rule 1.4 (communication); 1.9(c) (former clients)
- ABA Model Rule 1.16 (withdrawal); 3.4(c); 8.4
Other opinions cited:
- ABA Formal Op. 94-385 (1994): subpoena of a lawyer's files (revisited here)
- ABA Formal Op. 10-456: protecting privilege when called to testify
- Tennessee Formal Op. 2014-F-158; Arizona Op. 00-11 (2000)
Cases:
- Swidler & Berlin v. United States, 524 U.S. 399 (1998)
- Dike v. Dike, 448 P.2d 490 (Wash. 1968)
See also
- ABA Formal Op. 476: Confidentiality When Withdrawing for Unpaid Fees
- ABA Formal Op. 483: Lawyers' Obligations After a Data Breach
- ABA Formal Op. 480: Confidentiality in Lawyer Blogging
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: aba_formal_opinion_473.pdf