I was served with a subpoena duces tecum to bring a client's closed file to a deposition. May I assert the attorney-client privilege, and what do I do if the court orders disclosure?
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This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
An attorney was served with a subpoena duces tecum requesting that the attorney bring a client's closed file to a deposition. The attorney believed the information in the file was protected by the attorney-client privilege and intended to assert the privilege.
The Panel applies Rule 1.6, "Confidentiality of Information," under which a lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for impliedly authorized disclosures. Quoting the comment to the Rule, the opinion observes that when a lawyer is called as a witness to testify concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable, and that the lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.
Applying that framework, the opinion concludes the attorney has a duty to assert the attorney-client privilege, and if the attorney is ordered by the court to disclose the contents of the client's file, then the attorney must comply with the final orders of the court.
In practice
Under this opinion, the response to the subpoena has two steps: first, the lawyer invokes the attorney-client privilege on the client's behalf because the client has not waived it; second, if the court resolves the dispute against the privilege and issues a final order, the lawyer complies with that order. The opinion locates both obligations in Rule 1.6 and its comment.
Common questions
Q: Must a Rhode Island lawyer turn over a subpoenaed client file immediately?
A: No. The opinion holds that the lawyer has a duty to invoke the attorney-client privilege when it applies, rather than producing the file on the strength of the subpoena alone.
Q: What happens if the court overrules the privilege claim?
A: The opinion states that if the attorney is ordered by the court to disclose the file, the attorney must comply with the final orders of the court.
Q: Where does the duty to assert the privilege come from?
A: The opinion grounds it in Rule 1.6 and its comment, which require a lawyer called as a witness, absent client waiver, to invoke the privilege when applicable.
Background and rules framework
The opinion interprets Rhode Island Rule of Professional Conduct 1.6, the analog of Model Rule 1.6, governing confidentiality of information. Rule 1.6(a) bars a lawyer from revealing information relating to the representation of a client absent client consent after consultation or implied authorization. The comment to the Rule addresses the lawyer called as a witness, directing the lawyer to invoke the privilege when applicable and to comply with the final orders of a court of competent jurisdiction.
Citations and references
Rules of Professional Conduct:
- MR 1.6 (confidentiality of information; comment on lawyer called as a witness)
- RI RPC 1.6 (same)
See also
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%2093-08.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Final
ETHICS ADVISORY PANEL
Opinion #93-8, Request #338
Issued March 15, 1993
An attorney seeks Panel advice regarding the confidentiality of information. The attorney was served with a subpoena duces tecum requesting the attorney to bring a client's closed file to a deposition. The attorney states that the information contained in the file is protected by the attorney/client privilege and intends to assert the privilege.
Rule 1.6 entitled "Confidentiality of Information" governs this situation. The Rule states that:
(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 comments to the Rule state that "If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client." In this situation, the attorney has the duty to assert the attorney/client privilege. If the attorney is ordered by the court to disclose the contents of the client's file, then the attorney must comply with the final orders of the court.
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