How must a former government lawyer respond to a subpoena or court order seeking confidential information from a matter they handled in government service?
NYSBA Ethics Opinion 1198: A Former Government Lawyer Subpoenaed for Confidential Information
Short answer: The opinion concludes that a former government lawyer may disclose a former client's confidential information when reasonably believed necessary to comply with a court order, but must first consult the former client and seek to limit or challenge the demand before disclosing.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's 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
A New York lawyer who served as a government prosecutor was an onsite legal advisor during a criminal investigation, including at the crime scene. The lawyer expects the victim's family to bring a civil suit naming the former government employer as a defendant and anticipates being subpoenaed as a witness. The lawyer asks how to respond to a subpoena seeking information or testimony about that matter. The committee notes its jurisdiction is limited to the Rules and that the former government employer may have its own rules that could impose additional or superior obligations.
The opinion explains that the duty of confidentiality under Rule 1.6 survives the end of the representation through Rule 1.9(c), so the former prosecutor still owes confidentiality to the former government client. It identifies the relevant permissive exception in Rule 1.6(b)(6), under which a lawyer may reveal confidential information to the extent reasonably believed necessary to comply with other law or a court order. Comments [12] through [15] make clear that paragraph (b) permits but does not require disclosure, and that when other law appears to require disclosure the lawyer must first consult the client under Rule 1.4 unless other law prohibits it.
Following ABA Formal Opinion 473 (2016) and N.Y. State 1057 (2015), the committee concludes the lawyer must first consult the former client and, absent informed consent, assert nonfrivolous arguments that the order is unauthorized, privileged, or otherwise defective, including seeking in camera review and, where the information is privileged, considering an appeal. Any disclosure ultimately required should be no greater than reasonably necessary. The committee also notes that if the lawyer is admitted in more than one jurisdiction, Rule 8.5 choice-of-law principles determine which rules govern the conduct.
In practice
Under this opinion, a former government lawyer served with a subpoena or court order for a former client's confidential information must first consult the former client (to the extent Rule 1.4 requires and other law allows), then, absent consent, seek to limit or challenge the demand on nonfrivolous grounds such as lack of authorization or privilege, including in camera review or appeal where the information is privileged. The opinion holds that disclosure is permitted under Rule 1.6(b)(6) only to the extent reasonably believed necessary to comply, and that the lawyer must minimize what is disclosed. Per the opinion, separate government rules and Rule 8.5 choice-of-law may also bear on the lawyer's obligations.
Common questions
Q: Does a former government lawyer still owe confidentiality after leaving the agency?
A: Yes. Per the opinion, Rule 1.6's duty of confidentiality continues after the representation ends through Rule 1.9(c).
Q: Can the lawyer simply comply with a subpoena and disclose?
A: Per the opinion, not as a first step. The lawyer must first consult the former client and, absent consent, assert nonfrivolous challenges to the order before disclosing.
Q: How much may the lawyer disclose if compliance is required?
A: Per the opinion, only what the lawyer reasonably believes necessary to comply with the order; the lawyer should minimize the disclosure, consistent with law.
Q: What if the information is privileged?
A: Per the opinion, the lawyer should seek to protect it, including by requesting in camera review, and where the lawyer believes it is privileged, should consider appealing an adverse order.
Background and rules framework
The opinion interprets New York Rule 1.6 (confidentiality, including the 1.6(b)(6) exception for compliance with law or court order), Rule 1.9(c) (duties to former clients), Rule 1.11 ("confidential government information"), Rule 1.4 (communication), and Rule 8.5 (disciplinary authority and choice of law). These correspond to ABA Model Rules 1.6, 1.9, 1.11, 1.4, and 8.5.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.6 and Cmts. [12]-[15]; 1.9(c); 1.11; 1.4; 8.5(b)
- ABA Model Rules 1.6, 1.9, 1.11, 1.4, 8.5 (analogues)
Other opinions cited:
- ABA Formal Op. 473 (2016): responding to a subpoena for client confidential information
- N.Y. State 1057 (2015): in camera review and appeal of a disclosure order
- N.Y. State 681 (1996); N.Y. State 528 (1981): disclosure of secrets vs. privileged information
- N.Y. State 998 (2014): scope of Rule 1.6(b)(6)
See also
- NY State Bar Op. 1205: Government Lawyer Negotiating Private Employment With an Adverse Party
- NY State Bar Op. 1216: Government Lawyer Consulting for a Private Software Vendor
- NY State Bar Op. 1274: Former Clients and Government Lawyers
Source
- Landing page: https://nysba.org/ethics-opinion-1198/