When a lawyer's client files are subpoenaed and the client has refused or cannot give consent, how much must, or may, the lawyer disclose?

Plain-English summary

The Committee was asked how far an attorney must go to disclose client files in response to a subpoena when the client has specifically declined to release the materials or cannot be reached for consent. The opinion concluded that an attorney may disclose non-privileged material in response to a valid subpoena without the client's consent, but should remove or redact confidential and privileged material or communications, which should not be disclosed absent a specific court order.

The opinion explained that Rule 1.6 imposes a confidentiality duty much broader than the attorney-client privilege, derived from agency law governing fiduciary relationships, covering all information relating to the representation whatever its source. Drawing on the comment to Rule 1.6 and on the Alaska Court of Appeals decision in Downie v. Superior Court, 888 P.2d 1306 (Alaska Ct. App. 1995), the opinion distinguished the broad confidentiality rule from situations where evidence is sought from the lawyer through compulsion of law; in the latter, the lawyer's obligation is governed by the attorney-client privilege as defined in the jurisdiction's law of evidence. The Committee noted that the question presented did not involve a possible duty to disclose to avoid assisting a client's crime or fraud under Rule 3.3(a)(2), and it expressed no view on that different scenario.

Applying these principles, the opinion concluded that a lawyer served with a validly issued subpoena is authorized under Rule 1.6 to disclose non-privileged information and materials, but should redact or remove privileged information, and that attorney-client materials and communications should never be disclosed absent a specific court order. It added a note of caution: because non-compliance with a subpoena is technically contempt, but the Committee was uncomfortable allowing disclosure of privileged communications on a subpoena alone, a lawyer should protect such materials and not disclose them, absent the client's consent, until a judge has evaluated the merits and ordered disclosure.

Currency note

This opinion was issued in 1996, before Alaska's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a lawyer turn over client files just because they were subpoenaed?

A: The opinion concluded a lawyer may disclose non-privileged material under a valid subpoena without the client's consent, but should redact or withhold confidential and privileged material.

Q: Can privileged communications be produced under a subpoena alone?

A: Per the opinion, attorney-client materials and communications should never be disclosed absent a specific court order; the lawyer should protect them until a judge orders disclosure.

Q: How does Rule 1.6 confidentiality differ from the attorney-client privilege here?

A: The opinion explained that Rule 1.6 is much broader than the privilege, covering all information relating to the representation, while where evidence is compelled by law the lawyer's obligation turns on the privilege as defined by the jurisdiction's evidence law.

Q: What should the lawyer do when unsure whether material is privileged?

A: The opinion advised that if there are doubts, the attorney should err on the side of non-disclosure.

Background and rules framework

The opinion interpreted Alaska Rule of Professional Conduct 1.6 (confidentiality of information; Model Rule 1.6), emphasizing that the duty is broader than the attorney-client privilege and is rooted in agency-law fiduciary duties (Restatement (Second) of Agency Section 396), and noted Rule 1.8(b). It relied on the Alaska Court of Appeals decision in Downie v. Superior Court, 888 P.2d 1306 (Alaska Ct. App. 1995), and referenced Alaska Civil Rule 45 (subpoena duces tecum). It expressly left aside any Rule 3.3(a)(2) duty tied to a client's crime or fraud.

Citations and references

Rules of Professional Conduct:

• Alaska RPC 1.6 (confidentiality of information)
• Alaska RPC 1.8(b) (use of client information)

Cases:

• Downie v. Superior Court, 888 P.2d 1306 (Alaska Ct. App. 1995)

Other authorities:

• Restatement (Second) of Agency Section 396 (1957); Alaska Civil Rule 45

See also

• ABA Formal Op. 94-385: Subpoenas of a Lawyer's Files
• AL Ethics Op. 1990-92: Client File and Subpoena
• AK Bar Ethics Op. 2003-3: Documents in the Client File on Termination

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/96-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
ETHICS OPINION NO. 96-3
Disclosure Of Client Files
The Committee has been asked to define the extent of an attorney’s duty
to disclose client files pursuant to a subpoena in circumstances where the
client has specifically declined the release of those materials, or where it is not
possible to obtain the client’s consent.
It is the Committee’s view that an attorney may, in response to a valid
subpoena, disclose non-privileged material without the client’s consent.
However, care should be taken to remove and/or redact confidential and
privileged material or communications.
This information should not be
disclosed absent a specific court order.
ANALYSIS
Rule 1.6 of the Alaska Rules of Professional Conduct states:
(a) a lawyer shall not reveal information relating
to representation of a client unless the client consents
after consultation, except for disclosures that are
impliedly authorized in order to carry out the
representation . . .
By design, Rule 1.6 imposes a duty on the lawyer which is much broader
than the traditional attorney-client privilege. The broader obligation is derived
from agency law governing obligations arising from fiduciary relationships. See
Restatement (Second) of Agency § 396 (1957). It is also reflected in other
aspects of the Model Code. See e.g. Rule 1.8(b).
The Comment to Rule 1.6 states, in part:
The attorney-client privilege applies in judicial
and other proceedings in which a lawyer may be called
as a witness or otherwise required to produce evidence
concerning a client.
The rule of client-lawyer
confidentiality applies in situations other than those
where evidence is sought from the lawyer through
compulsion of law. The confidentiality rule applies not
merely to matters communicated in confidence by the

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client but also to all information relating to the
representation, whatever its source. A lawyer may not
disclose such information except as authorized or
required by the rules of professional conduct or other
law.
(Emphasis added).
This important distinction has been recognized by the Alaska courts. In
Downie v. Super. Ct., 888 P.2d 1306 (Alaska Ct. App. 1995), a public defender
refused to testify whether she had informed her client of a trial date on the
basis that it would violate the attorney-client privilege. Downie conceded that
the law was uniformly to the effect that the attorney-client privilege does not
bar an attorney from testifying as to whether he or she informed a client of a
court date, but she nonetheless contended that the scope of the attorney-client
privilege must be re-evaluated in light of the adoption of the Alaska Rules of
Professional Conduct and, in particular, Rule 1.6. The court of appeals
rejected this interpretation. Because Downie was testifying pursuant to a
grand jury subpoena, this was not a situation where the client-lawyer
confidentiality contemplated by Rule 1.6 applied; i.e. it was a situation “where
evidence is sought from the lawyer through compulsion of law.” Accordingly,
“in the final analysis . . . the lawyer’s obligation to testify is governed by the
attorney-client privilege as defined in that jurisdiction’s law of evidence.” Id. at
pg. 1309.
Likewise, in the hypothetical presented to the committee, the attorney’s
files relating to his former representation have been subpoenaed.
DISCUSSION
In reaching its opinion in this case, the Committee believes it is
important to emphasize several points:
1.
This opinion does not address the situation of whether an attorney
might be required to voluntarily disclose information if “necessary to avoid
assisting a criminal or fraudulent act by the client.” See Rule 3.3(a)(2). This is
a far different scenario than that presented to the Committee, and no opinion is
offered on the scope of an attorney’s obligations in those circumstances, which
may be problematic.
2.
Nothing in this opinion should be construed as excusing an
obligation on the part of the attorney to seek the client’s consent to disclosure
whenever that avenue is available.
In the question presented to the

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Committee, we have been asked to assume that consent was either declined or
was impossible to obtain.
3.
This opinion only deals with information and/or material which
was not disclosed with the client’s implied authorization during the attorney’s
representation of the client. For instance, in a matter in litigation, the
Committee believes that pleadings filed in court or with an administrative body
including, for instance, affidavits signed by the client, would be materials
which the client “impliedly authorized” for disclosure. Once that material
enters the public domain, we see no reason why it would be necessary for an
attorney to obtain the client’s consent to provide copies of those materials upon
request to a third-party.1
From the premises, the Committee believes an attorney is ethically
obliged to follow these steps in responding to a request for client files:
A.
If there is an informal request for information relating to
representation of a client, the attorney may only reveal that information or
materials, if any, which the client “impliedly authorized” the attorney to
disclose “in order to carry out the representation . . . .”.2
B.
With respect to all other materials or information, the lawyer must
try to obtain the client’s consent. If that consent is not forthcoming, the
attorney may not honor the informal request.
1
This approach is consistent with an opinion already adopted by the Board of
Governors which discusses the propriety of “shop talk” and providing courtesy copies
of pleadings to other lawyers. See Alaska Bar Association Ethics Opinions 95-1.
2
In the Committee’s view, a practitioner would be well advised to nonetheless
inform the client of the request as a courtesy, if nothing else. The Committee notes
that in the Comment to Rule 1.6, the following are offered as examples of disclosures
“impliedly authorized” by the client: “In litigation, for example, a lawyer may disclose
information by admitting a fact that cannot properly be disputed, or in negotiation by
making a disclosure that facilitates a satisfactory conclusion.”
The Committee believes the former situation may be different from the latter.
The client who authorizes a concession during a negotiation with a private party may
have a reasonable expectation that the disclosure will not go beyond the parameters
of that private dispute. On the other hand, a pleading filed in state court or with an
administrative body, unless filed and/or maintained under seal, would not support a
similar expectation. If there are doubts, the Committee believes the attorney should
err on the side of non-disclosure.

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C.
If the attorney receives a validly issued subpoena, he is authorized
under Rule 1.6 to disclose all non-privileged information and/or materials, but
the attorney should take care to redact and/or remove privileged information
and/or communications.
D.
With respect to attorney-client materials and/or communications,
that information should never be disclosed absent a specific court order.3
In summary, an attorney has a broad duty to prevent the disclosure of all
information relating to representation of a client except those disclosures
“impliedly authorized” by the client in order to carry out the representation.
With respect to other information and materials in the attorney’s possession,
non-privileged information and/or materials may be produced in response to a
validly issued subpoena; materials and/or information otherwise within the
scope of the attorney-client privilege should not be disclosed under any
circumstances without the client’s consent unless there is a specific court
order compelling the disclosure.
Approved by the Alaska Bar Association Ethics Committee on March 6, 1996.
Adopted by the Board of Governors on March 22, 1996.

G:\DS\EC&OPS\OPINIONS\96-3.DOC

3 Alaska R. Civ. P. 45 authorizes issuance of a subpoena duces tecum by the clerk of
court. Technically, non-compliance with a subpoena is deemed a contempt of the
court from which the subpoena issued. The Committee is uncomfortable in allowing
attorneys to disclose confidential and privileged communications pursuant to a
subpoena. We believe a lawyer has the duty to protect those materials and/or
information at all time, unless consent is provided by the client. Absent that consent,
an attorney should not disclose that information unless a judge has had an
opportunity to evaluate the merits, and otherwise ordered the disclosure.

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