What are an Ohio lawyer's duties when served with a subpoena duces tecum for a former client's entire file?

Plain-English summary

A lawyer received a subpoena duces tecum from a prosecuting attorney demanding production of a former client's entire file, where the former client is not a party to the matter. The Board frames the lawyer's duties around the continuing confidentiality obligation in Prof.Cond.R. 1.6, which survives the end of the representation, and the duty to communicate in Prof.Cond.R. 1.4.

The opinion concludes the lawyer must promptly notify the former client of the subpoena before the response deadline and obtain informed consent on how to proceed, because whether to comply with or challenge the subpoena is a decision requiring the client's informed consent under Prof.Cond.R. 1.4(a)(1). The consultation should explain Prof.Cond.R. 1.6, the attorney-client privilege, the work-product doctrine, and the material risks and alternatives so the client can make an informed decision. The Board states that, although Prof.Cond.R. 1.6(a) does not require it, a prudent lawyer should document the client's consent in writing.

If the former client consents to compliance, disclosure should be limited to what the lawyer reasonably believes is necessary to comply, citing Prof.Cond.R. 1.6(b), cmt. [16] and ABA Formal Opinion 473 (2016). If the client chooses to challenge, the lawyer should serve written objections or file a motion to quash, and may comply only on a court order (subject to the client's right to appeal). The opinion notes additional protective measures such as protective orders or in-camera review. If the former client cannot be timely located after reasonable efforts, the lawyer must still assert all reasonable claims (objections, motion to quash) on the absent client's behalf and tell the court of the failed location efforts, but is not required to appeal on behalf of the absent client.

In practice

Under this opinion, responding to a subpoena for a former client's file is not a routine production. Per the opinion, the lawyer's first step is notice to the former client and a consultation sufficient for informed consent under Prof.Cond.R. 1.4 and 1.0(f); only then does the client's choice (comply, object, or move to quash) drive what the lawyer does. The opinion limits any disclosure to what is reasonably necessary under Prof.Cond.R. 1.6(b).

The opinion also addresses fees and the absent client. Because responding to the subpoena usually falls outside the prior representation's scope, the Board states the lawyer should discuss a new fee arrangement under Prof.Cond.R. 1.2 and 1.5, and suggests engagement agreements anticipate later demands for protected information. Where the client cannot be located, the opinion directs the lawyer to assert reasonable claims to limit disclosure but does not require pursuing an appeal for the absent client.

Common questions

Q: Can a lawyer just hand over a former client's file in response to a subpoena?

A: No. The opinion concludes the lawyer must first promptly notify the former client and obtain informed consent, because the confidentiality duty in Prof.Cond.R. 1.6 continues after the representation ends and the file contains protected client information.

Q: How much of the file may the lawyer disclose if the client consents?

A: Per the opinion, only the information the lawyer reasonably believes is necessary to comply with the subpoena, applying Prof.Cond.R. 1.6(b), cmt. [16] and ABA Formal Opinion 473.

Q: What if the former client wants to fight the subpoena?

A: The opinion states the lawyer should take reasonable steps to object, by serving written objections on the issuing party or filing a motion to quash, and may comply only if a court orders disclosure, unless the client decides to appeal under Prof.Cond.R. 1.6(b)(6).

Q: What if the lawyer cannot find the former client?

A: The opinion directs the lawyer to use reasonable efforts to locate the client and, failing that, to assert all reasonable claims to limit disclosure (objections, motion to quash) on the absent client's behalf and to inform the court of the attempts made. The lawyer is not required to appeal an adverse ruling on behalf of the absent client.

Q: Can the lawyer charge for responding to the subpoena?

A: The opinion notes that responding usually falls outside the original representation, so the lawyer should discuss a fee arrangement and enter a new agreement addressing scope and fees, consistent with Prof.Cond.R. 1.2 and 1.5.

Background and rules framework

The opinion interprets the Ohio Rules of Professional Conduct: Prof.Cond.R. 1.6 (confidentiality of information, continuing after representation), 1.9 (duties to former clients), 1.4 (communication and informed consent), 1.0 (definitions, including informed consent), and 1.2 / 1.5 (scope and fees for any new engagement to respond). It draws repeatedly on ABA Formal Opinion 473 (2016), which addresses a lawyer's response to compulsory process for client information.

Citations and references

Rules of Professional Conduct:

• Ohio Prof.Cond.R. 1.6 / Model Rule 1.6 (confidentiality of information)
• Ohio Prof.Cond.R. 1.9 / Model Rule 1.9 (duties to former clients)
• Ohio Prof.Cond.R. 1.4 / Model Rule 1.4 (communication; informed consent)
• Ohio Prof.Cond.R. 1.0(f) (definition of informed consent)
• Ohio Prof.Cond.R. 1.2, 1.5 (scope of representation; fees)
• Ohio Prof.Cond.R. 3.1, 3.4(a) (frivolous positions; obstructing access to evidence)

Other opinions cited:

• ABA Formal Opinion 473 (2016): responding to a subpoena or other compulsory process for client information

See also

• ABA Formal Op. 473: Subpoenas and Compulsory Process for Client Information
• OH BPC Ethics Op. 1992-08: Returning Client Files and Retaining Liens
• OH BPC Ethics Op. 2010-02: Lawyer Notes as Part of the Client File

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2023/06/Adv.-Op.-2023-04-Final.pdf

Original opinion text

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

OPINION 2023-04
Issued June 9, 2023

Compliance with Subpoena Duces Tecum for Former Client's File

SYLLABUS: A lawyer in receipt of a subpoena duces tecum for a former client's file must promptly notify the former client of the request and seek the client's informed consent to the disclosure of client information contained in the file.

If the former client gives consent to comply with a subpoena duces tecum for the client's file, the lawyer's disclosure of the client's information should be made only to the extent that the lawyer believes is reasonably necessary to comply with the subpoena. If the former client chooses to challenge a subpoena, the lawyer must assert all reasonable claims to limit the disclosure of client information related to the former representation, including, but not limited to, the serving of written objections on the issuing party, the filing of a motion to quash, and the appeal of an adverse court ruling.

If the former client cannot be timely located, the lawyer must assert all reasonable claims to limit the disclosure of client information related to the former representation in response to the subpoena, including, but not limited to, serving objections on the issuing party and filing a motion to quash.

QUESTION PRESENTED:

What are a lawyer's ethical duties when served with a subpoena duces tecum to produce a former client's file in its entirety?

APPLICABLE RULES: Prof.Cond.R. 1.0, 1.2, 1.4, 1.5, 1.6, 1.9

OPINION:

The requesting lawyer has received a subpoena duces tecum from a prosecuting attorney seeking the production of the file of a former client. The former client is not a party to the matter in question. The requesting lawyer seeks guidance about his ethical duties and obligations to the former client in responding to the subpoena.

Lawyer's Obligations Under Prof.Cond.R. 1.6

A lawyer has a professional duty to protect the confidentiality of client information. Prof.Cond.R. 1.6. To the extent that a lawyer is in possession of a former client's file after termination of representation, the lawyer must continue to comply with the obligation to not reveal information relating to the representation of the former client including information protected by the attorney-client privilege. Prof.Cond.R. 1.6; cmt.[20]. A lawyer cannot reveal any information relating to the representation of a former client unless it is impliedly authorized, the former client gives informed consent, or an exception under Prof.Cond.R. 1.6 permits the disclosure. Prof.Cond.R. 1.6(a),(b),(d).

Notice and Communication with Former Client

Upon receipt of a subpoena duces tecum for a former client's file, a lawyer should promptly provide notice of the fact to the former client before the deadline to respond to the subpoena has passed. If the former client is available, the lawyer must "inform the client of any decision or circumstance with respect to which the client's informed consent is required" which would include whether the client wishes to comply with or challenge the subpoena. Prof.Cond.R. 1.4(a)(1).

Obtaining the former client's informed consent requires the lawyer to give the client adequate information and explain the matter to the extent that the client may make an informed decision. Prof.Cond.R. 1.4(b). The consultation with the former client should include an explanation of the scope and application of Prof.Cond.R. 1.6, the attorney-client privilege, the work-product doctrine, and any other protections or immunities that may serve as the basis for challenging the subpoena. A lawyer's explanation to the former client should also include the material risks and any alternatives to the disclosure of the client's confidential information. See Prof.Cond.R. 1.0(f) (definition of informed consent.) Although not required by Prof. Cond. R. 1.6(a), the Board believes a prudent lawyer should obtain written documentation of the client's consent to avoid any dispute about the nature and scope of the authorization.

Compliance with Subpoena or Court Order

If the former client gives informed consent to the lawyer to comply with a subpoena duces tecum for the client's file, the lawyer's disclosure of the client's information should be made only "to the extent that the lawyer believes is reasonably necessary in order to comply" with the subpoena. Prof.Cond.R. 1.6(b), cmt.[16]; ABA Formal Opinion 473 (2016).

If the former client decides to challenge a subpoena, the Board recommends that the lawyer take reasonable steps to object to the disclosure of client information in the former client's file through written objections served on the issuing party or by filing a motion to quash. If the court grants the issuing party's subsequent motion to compel or overrules the former client's motion to quash and orders the disclosure of the client file, the lawyer may comply with the court order, unless the lawyer's client decides to appeal. Prof.Cond.R. 1.6(b)(6).

Opportunity for Appeal

In the event of an adverse ruling or order by a court directing the disclosure of the former client's file, a lawyer should discuss the grounds for an appeal with the former client. Prof.Cond.R. 1.6, cmt.[15]. If an immediate right of appeal is available, and the client wishes to pursue it, the Board recommends that the lawyer clearly identify the scope and terms of the engagement, including any fee to be paid, in order to comply with Prof.Cond.R. 1.2 and 1.5. Whether and under what circumstances a lawyer may appeal a court's adverse ruling concerning compliance with a subpoena of a nonparty is a question of law that the Board is without authority to address.

If the former client decides to forego an appeal and comply with the court's order, the Board advises the lawyer to consider additional measures including, but not limited to, seeking appropriate protective orders, requesting an in-camera review, or other arrangements so that access to the client's information is limited to the court or persons the court deems entitled to the information. Prof.Cond.R. 1.6, cmt. [16].

When the Former Client Cannot Be Timely Located

If the former client cannot be timely located, the lawyer should use reasonable efforts to find the former client. If the lawyer's continuing efforts to locate the client are unsuccessful, the Board advises the lawyer to assert all reasonable claims on behalf of the unavailable former client, through written objections served on the issuing party or the filing a motion to quash, on the basis that the information sought by the subpoena is protected from disclosure by privilege or other grounds. In the court filing, the lawyer should notify the court that the lawyer has been unable to locate the client and reference any attempts undertaken to find the client. In the event of an adverse ruling or order by the court, the lawyer is not required to undertake an appeal on behalf of the former and absent client. ABA Formal Opinion 473 (2016).

Fees for Legal Services

In most situations, the request for a former client's file will fall outside the scope of the lawyer's prior representation. When giving the former client notice of the subpoena duces tecum, the lawyer should discuss any fee arrangement for providing the legal services necessary to respond to the subpoena and enter into a new agreement that addresses any fees and expenses and the scope of representation. As a best practice, a lawyer may consider including in all client fee agreements a provision that anticipates payment for the lawyer's services and any costs associated with a demand for client information protected by Prof.Cond.R. 1.6 that is received after termination of the representation. See ABA Formal Opinion 473 (2016).