When a lawyer is subpoenaed for documents containing a current or former client's confidential information, must the lawyer comply, object, or fight it?

Plain-English summary

The opinion addresses a lawyer who receives a subpoena, including one issued by another attorney, calling for documents that contain confidential but non-privileged information the lawyer learned while representing a current or former client. It treats a valid subpoena as potentially "other law" that authorizes disclosure under Rule 1.6.

The opinion sets out a three-step obligation. First, the lawyer must communicate with the current or former client whose information is sought. Second, the lawyer must make reasonable efforts to obtain the client's consent to respond. Third, if consent is not received, whether because the client refuses or cannot be reached, the lawyer may rely on the Rule 1.6(b)(6) exception for disclosures authorized by other law or court order, but must still assert reasonable and non-frivolous objections and produce only the information not subject to those objections.

The opinion stresses that the lawyer must exercise independent, reasonably informed judgment about the subpoena's validity. The lawyer should not assume that all requested information must be produced merely because the issuing party insists, and is not required to withhold information based on a merely theoretical protection. Where the lawyer reasonably concludes information is privileged and subject to a non-frivolous objection, the lawyer cannot turn it over consistent with Rule 1.6, even against an intransigent issuing party.

On the limits of the lawyer's duty, the opinion concludes that the lawyer generally need not seek court intervention before responding, need not move to quash, and need not appeal an order requiring disclosure. If the issuing party initiates enforcement proceedings, the lawyer should appear and make arguments sufficient to maintain the non-frivolous objections, though a court appearance is generally not required and the lawyer may seek an order clarifying the lawyer's obligations.

In practice

Under this opinion, a New York lawyer served with a subpoena for client information should first notify the affected current or former client and try to obtain consent before producing anything. The opinion permits production under the Rule 1.6(b)(6) other-law exception when consent cannot be obtained, but conditions that production on asserting reasonable objections and limiting disclosure to what is reasonably necessary.

The opinion frames the validity assessment as the lawyer's own reasonable, informed judgment rather than deference to the issuing party. It does not require the lawyer to litigate the subpoena to the end: no motion to quash and no appeal are mandated, but the lawyer should appear and maintain non-frivolous objections if the issuing party moves to enforce.

Common questions

Q: I got a subpoena for a former client's file. Do I have to tell the client?

A: Yes. The opinion requires the lawyer to communicate with the current or former client whose confidential information is sought and to make reasonable efforts to obtain consent before responding.

Q: The client won't consent or I can't reach them. Can I produce the documents?

A: Yes, with limits. The opinion concludes the lawyer may rely on Rule 1.6(b)(6)'s "authorized by other law or court order" exception, but must assert reasonable, non-frivolous objections and disclose only what is reasonably necessary.

Q: Do I have to move to quash or appeal?

A: No. The opinion concludes the lawyer is not required to make a motion to quash or to appeal an order requiring disclosure, though if the issuing party seeks enforcement the lawyer should appear and maintain non-frivolous objections.

Q: What if I think some of the requested material is privileged?

A: The opinion concludes that where the lawyer reasonably determines information is privileged and subject to a non-frivolous objection, the lawyer cannot produce it consistent with Rule 1.6, even if the issuing party insists.

Background and rules framework

The opinion interprets New York Rules of Professional Conduct that track the ABA Model Rules: Rule 1.6 (confidentiality, including the 1.6(b)(6) exception for disclosures authorized by other law or court order), Rule 1.4 (communication with the client about the subpoena), Rules 1.7 and 1.9 (conflicts respecting current and former clients), and Rule 3.1 (the requirement that objections be non-frivolous). The opinion distinguishes confidential information from privileged information, noting privileged material remains protected.

Citations and references

Rules of Professional Conduct:

• MR / NY RPC 1.6 (confidentiality; 1.6(b)(6) other-law/court-order exception)
• MR / NY RPC 1.4 (communication with the client)
• MR / NY RPC 1.7, 1.9 (conflicts; current and former clients)
• MR / NY RPC 3.1 (non-frivolous positions)

Other opinions cited:

• New York City Op. 2010-01: client engagement letters and file return/destruction
• New York City Op. 2008-01: retaining and providing electronic client documents
• NYCLA Op. 725 (1998): retention of closed client files

See also

• NYC Bar Ethics Op. 2017-6: Issuing a subpoena to a current client
• NYC Bar Ethics Op. 2010-01: Engagement letters and return or destruction of client files
• NYC Bar Ethics Op. 2008-01: Duty to retain and provide electronic client documents

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2022-1-lawyers-obligations-when-receiving-a-subpoena-seeking-client-information/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/20221004-EthicsOpinionLawyersObligationWhenSubpoenaedforClientInfo.pdf