Can a New York lawyer subpoena a current client for evidence in another client's lawsuit?

Plain-English summary

The opinion addresses what happens when a lawyer in a civil lawsuit needs to subpoena a non-party who is also the lawyer's current client in an unrelated matter. The committee concludes that issuing such a subpoena ordinarily gives rise to a conflict of interest under Rule 1.7(a), because seeking testimony or documents from a current client typically involves "differing interests" within the meaning of Rule 1.0(f): obtaining testimony probes and may confront the witness, and producing documents imposes burdens the subpoenaed client would prefer to avoid. Under Rule 1.7(b), the lawyer may proceed only with the informed written consent of both affected clients.

The committee surveys differing authorities (some treating discovery from a current client as "frequently" or "likely" a conflict, California Op. 2011-182 treating it as invariably adverse, and other authorities keying on whether the evidence is adverse) and declines to draw a precise line. It concludes that subpoenaing a current client for testimony or documents will ordinarily be a conflict, while acknowledging narrow exceptions, for example a client who voluntarily gives discrete, helpful testimony (a single date) or produces a single document such as a cancelled check. Because even those exceptional situations require essentially the same client conversation as obtaining consent, the opinion states that, as a matter of prudence, a lawyer would be well advised to treat all of them as conflicts.

The opinion then sets out three practical consequences: lawyers should run a conflict check before preparing and serving a subpoena; if the need to subpoena a current client is foreseeable before retention, the lawyer must obtain consent, limit the scope of the representation, or decline; and if the need arises mid-representation, the lawyer may have to withdraw under Rule 1.16 or retain conflicts counsel to conduct the discovery.

In practice

Under this opinion, conduct that involves serving a subpoena on a current client for the benefit of another current client is treated as a Rule 1.7 conflict that, as the New York rule stood at the time of the opinion, required informed written consent from both clients. The opinion holds that where consent cannot be obtained, the lawyer's options are to limit the scope of the litigation representation (with the litigant client's informed consent, memorialized in writing), to retain conflicts counsel for the limited purpose of taking the discovery, or to decline or withdraw. When conflicts counsel is used, the opinion holds that the original lawyer must stay neutral toward the client-witness: the lawyer may not hand over a drafted subpoena, direct strategy, or selectively segregate documents targeting the other client.

Common questions

Q: Is it always a conflict to subpoena someone who is also my client in another matter?

A: The opinion says it ordinarily is. Seeking testimony or documents from a current client usually involves differing interests under Rule 1.7(a). The committee recognizes narrow exceptions (a client who voluntarily gives discrete helpful testimony, or produces a single document) but advises treating all such situations as conflicts because the clearing conversation is the same as obtaining consent.

Q: Can I cure the conflict with consent?

A: Yes. Under Rule 1.7(b), the lawyer may proceed with the informed consent of both affected clients, confirmed in writing, provided the lawyer reasonably believes competent and diligent representation can be given to each.

Q: What if I only learn I need to subpoena a current client after the litigation is underway?

A: The opinion describes this as difficult. Withdrawal under Rule 1.16 is one option, though deciding which representation must end can be hard. Alternatively, with the litigation client's consent, the lawyer may retain conflicts counsel to take the discovery, subject to limits on directing or assisting that counsel against the lawyer's own client.

Q: Should I run a conflict check before serving a subpoena?

A: The opinion notes that Rule 1.10(e) does not list subpoena service among its triggers, but because subpoenaing a current client can violate Rule 1.7, the committee says implementing conflict-checking procedures before preparing and serving the subpoena is prudent.

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 1.7 (concurrent conflicts of interest; Model Rule 1.7) together with the Rule 1.0(f) definition of "differing interests," which New York uses in place of the Model Rules' "directly adverse" formulation. It also draws on Rule 1.16 (declining or terminating representation; Model Rule 1.16) for withdrawal and on Rule 1.10(e) (Model Rule 1.10) for conflict-checking systems and imputation. The committee relies on its own prior opinions (2001-3, 2004-02, 2005-05, 2005-2) and on ABA Formal Op. 92-367 addressing discovery directed at a current client.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.7 / NY RPC 1.7 (concurrent conflicts of interest)
• Model Rule 1.0(f) / NY RPC 1.0(f) (definition of "differing interests")
• Model Rule 1.16 / NY RPC 1.16 (declining or terminating representation)
• Model Rule 1.10 / NY RPC 1.10(e) (conflict-checking systems; imputation)

Cases:

• Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), adversity to a current client in an unrelated matter
• Wierzbicki v. County of Rensselaer, 2015 WL 4757755 (N.D.N.Y. 2015), conflict only where witness testimony is adverse
• George v. City of Buffalo, 789 F. Supp. 2d 417 (W.D.N.Y. 2011), conflict from a witness's expected adverse testimony

Other opinions cited:

• ABA Formal Op. 92-367 (1992): discovery of or cross-examining a current client
• NYCBA Formal Op. 2001-3 (2001): limiting scope to avoid current-client conflicts
• California State Bar Formal Op. 2011-182 (2011): discovery on a current client as invariably adverse
• NYCBA Formal Op. 2005-05 (2005): advance conflict waivers

See also

• NYC Bar Ethics Op. 2019-4: Representing multiple witnesses in an investigation
• NYC Bar Ethics Op. 2024-1: Conflicts in representing two or more clients
• ABA Formal Op. 473: Responding to a subpoena for client information
• ABA Formal Op. 05-436: Informed consent to future conflicts

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2017-6-issuing-a-subpoena-to-a-current-client/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/2017-6_Formal_Opinion_Issuing_subpoena_current_client_PROFETH_8.17.17.pdf