A prosecutor subpoenaed me to a grand jury to testify about when and how long I met with a client and what I observed. Do I have to go, and what can I refuse to answer?

Plain-English summary

The inquiring attorney sought advice concerning the attorney's ethical obligations where the attorney might be issued a subpoena duces tecum by a special assistant attorney general directing the attorney to appear before a grand jury to produce evidence of the dates, times, and length of meetings with, and visual observations of, a client.

The panel stated that the attorney-client privilege does not, in and of itself, excuse an attorney from appearing before a grand jury. It is the duty of the attorney to assert the privilege on behalf of the client, and because the privilege belongs to the client, the attorney must disclose any information the client instructs the attorney to reveal. The panel added that the attorney's grand jury testimony must be consistent with the attorney's obligations under Rule 1.6 (Confidentiality of Information), which bars revealing information relating to the representation of a client absent the client's consent after consultation, except for disclosures impliedly authorized to carry out the representation.

The panel concluded that the attorney must appear before the grand jury if the attorney receives a subpoena, and may decline to answer questions if the answers would run afoul of the attorney's obligations under Rule 1.6. The panel noted, however, that the attorney may be required to provide a specific explanation of the reasons for declining to respond to each question the attorney believes contravenes the attorney-client privilege, and that the ultimate question whether the privilege precludes certain testimony is a legal rather than an ethical one.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as then in force. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. 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 Treat this page as historical context, not current guidance.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 mentioned here.

Common questions

Q: Does attorney-client privilege let a lawyer ignore a grand jury subpoena?

A: Under this opinion, no. The panel concluded the privilege does not by itself excuse the attorney from appearing, and the attorney must appear if subpoenaed.

Q: What must the lawyer do about the privilege at the grand jury?

A: The panel said the attorney must assert the privilege on the client's behalf, and because it is the client's privilege, must disclose information the client instructs the attorney to reveal.

Q: Can the lawyer refuse to answer certain questions?

A: The attorney may decline to answer questions whose answers would run afoul of Rule 1.6, but may be required to give a specific explanation for each such refusal.

Q: Who decides whether the privilege actually applies?

A: The panel stated the ultimate question whether the privilege precludes certain testimony is a legal question, not an ethical one.

Background and rules framework

The opinion applies Rule 1.6 (Confidentiality of Information), corresponding to Model Rule 1.6, and distinguishes the ethical duty of confidentiality from the evidentiary attorney-client privilege. The panel treated appearance in response to a subpoena as required, framed the lawyer's role as asserting the client's privilege and following the client's instructions on disclosure, and left the ultimate scope of the privilege to legal determination rather than ethical opinion.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• RI RPC 1.6

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 95-61: Client List to a Government Agency
• RI EAP Op. 95-04: Disclosing a Client's Documents
• RI EAP Op. 91-10: Testifying About a Former Client

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2091-27.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel
Opinion #91-27, Request #134
Issued May 23, 1991

An attorney seeks Panel advice concerning the attorney's ethical obligations under circumstances in which the attorney may be issued a subpoena duces tecum by a special assistant attorney general directing the attorney to appear before a grand jury to produce evidence of dates, times, length of meeting, and visual observations of a client.

The Panel is of the opinion that the attorney-client privilege does not, in and of itself, excuse an attorney from appearing before a grand jury. It is the duty of the attorney to assert the privilege on behalf of the client. Because the privilege is that of the client, the attorney must disclose any information which he/she is instructed to reveal by the client.

The Panel takes the position that the attorney's testimony at the grand jury proceeding must be consistent with the attorney's obligations under Rhode Island Rule of Professional Conduct 1.6. Rule 1.6 provides in pertinent part:

Rule 1.6 CONFIDENTIALITY OF INFORMATION

(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...

The Panel is of the opinion that the attorney must appear before the grand jury if the attorney receives a subpoena. The attorney may decline to answer questions if the answers would run afoul of the attorney's obligations under Rule 1.6. The Panel notes, however, that the attorney may be required to provide a specific explanation of the attorney's reasons for declining to respond to each question which the attorney believes contravenes the attorney-client privilege. The ultimate question as to whether the attorney-client privilege precludes the attorney from giving certain testimony before the grand jury is a legal rather than an ethical one.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.