A government agency served me with a summons for my client's records. Do I have to hand them over, and would that violate the attorney-client privilege under Rule 1.6?
Apply this to your situation
This page answers the general question as of 1994. 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
The inquiring attorney received a summons from a government agency seeking certain client records in the lawyer's possession. The attorney asked whether he or she must comply with the summons and, if so, whether compliance would violate the attorney-client privilege.
The Panel identified Rule 1.6 ("Confidentiality of Information") as governing. Rule 1.6(a) bars a lawyer from revealing information relating to the representation of a client unless the client consents after consultation, except for impliedly authorized disclosures. The Panel quoted the Comment stating that if a lawyer is called as a witness to give testimony concerning a client, absent waiver, Rule 1.6(a) requires the lawyer to invoke the privilege when 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 guidance, the Panel opined that the attorney has the duty to assert the attorney-client privilege if producing the requested records would run afoul of the attorney's obligations under Rule 1.6. If the attorney is ordered by a court or other tribunal to disclose the client's records, then the attorney must comply with the final orders of the court.
Currency note
This opinion was issued in 1994 (Opinion 94-52, issued July 27, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.6. 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 Treat this page as historical context, not current guidance.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: If a government agency summonses my client's records, do I just turn them over?
A: The Panel opined that the attorney must first assert the attorney-client privilege where producing the records would violate Rule 1.6, rather than simply complying with the summons.
Q: When must the lawyer disclose the records?
A: The Panel stated that if a court or other tribunal orders disclosure, the attorney must comply with the final orders of the court.
Q: What rule governs the lawyer's confidentiality duty here?
A: Rule 1.6. The Panel treated the records as information relating to the representation and applied Rule 1.6(a) and its Comment on responding to compelled testimony or production.
Background and rules framework
The opinion interprets Rhode Island Rule of Professional Conduct 1.6 (confidentiality of information), the analog of Model Rule 1.6. Rule 1.6(a) prohibits revealing information relating to the representation absent consent, and the Comment addresses a lawyer's duty to invoke an applicable privilege while complying with a tribunal's final order. The Panel balanced the duty to assert privilege against the duty to obey a final judicial order.
Citations and references
Rules of Professional Conduct:
- MR 1.6 / RI RPC 1.6(a) (confidentiality of information; asserting privilege and complying with a tribunal's final order)
See also
- RI EAP Opinion 94-38: subpoenaed lawyer's duties under Rule 1.6
- RI EAP Opinion 94-42: no client list to the firm's bank under Rule 1.6
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%2094-52.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.
ETHICS ADVISORY PANEL
OPINION #94-52 REQUEST #522
Issued July 27, 1994
The inquiring attorney received a summons from a government agency seeking certain client records in the lawyer's possession. The attorney asks if he/she must comply with the summons and if so, would he/she violate the attorney-client 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 Rule 1.6 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 production of the requested records would run afoul of the attorney's obligations under Rule 1.6. If the attorney is ordered by a court or other tribunal to disclose the client's records, then the attorney must comply with the final orders of the court.
Get today's answer for your situation
You just read a 1994 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.