If a state investigative subpoena demands a law firm's entire trust account records, must the firm resist disclosure of information about clients who did not consent and are not the target of the investigation?

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Plain-English summary

A law firm, representing a client in real estate transactions, made deposits and disbursements through its general trust account, an escrow account used for transactions involving all of the firm's clients, not just the one client. The Tennessee Bureau of Investigation issued an investigative subpoena to the bank holding the account, seeking all records for more than a year. The client who was the apparent target of the investigation consented to release of information, but the T.B.I. was also seeking access to information about the firm's other clients, who had neither received notice of the investigation nor given consent.

The Board adopted the reasoning of ABA Opinion 250 (1943), which explained that the attorney-client relationship requires, in many cases, the fullest and freest disclosure by the client to the attorney, made in strict confidence and relying on the attorney's honor and fidelity, and that permitting the attorney to reveal such disclosures to others would violate a sacred trust and destroy the usefulness of professional assistance. Based on considerations of public policy, confidential communications made for the purpose of obtaining professional aid or advice are strictly privileged, and the attorney may not be permitted, without the client's consent, to reveal them.

Applying that reasoning, the Board concluded the attorney is ethically obligated to resist disclosing confidential information relating to the firm's clients not involved in the T.B.I. investigation, and to invoke all available legal remedies against such disclosure.

Common questions

Q: If one client consents to a subpoena reaching the firm's trust account, does that clear the firm to produce records for other clients on the same account?

A: No. The opinion addresses exactly this situation, where "the particular client, who is the apparent target or subject of the investigation, has consented to the release of the information," but the T.B.I. also sought records for other clients who "have neither received notice of the investigation nor given consent for release of information," and concludes the firm must resist disclosure as to those other clients.

Q: What must the firm do when it receives such a subpoena?

A: The opinion holds "the attorney is ethically obligated to resist disclosing confidential information relating to clients not involved in the T.B.I. investigation, and to invoke all available legal remedies against such disclosure."

Q: What is the underlying basis for withholding the information?

A: The Board adopts ABA Opinion 250 (1943), which reasons that confidential communications made by a client to obtain professional aid "shall be strictly privileged" and that the attorney may not reveal them "without the consent of his client."

Background and rules framework

The opinion applied the attorney-client privilege and confidentiality principles reflected in ABA Opinion 250 (1943), which the Board adopted as its own reasoning. The modern correlate is Model Rule 1.6 (confidentiality of information), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 (confidentiality of information), modern correlate

Other opinions cited:

• ABA Opinion 250 (1943): confidential client communications made to obtain professional aid are strictly privileged and may not be revealed without consent

See also

• ABA Formal Op. 473: Subpoenas for Client Information
• ABA Formal Op. 94-385: Subpoenas of a Lawyer's Files

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-20

Original opinion text

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

81-F-20 - Investigative Subpoena

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-20

An inquiry has been made concerning the propriety of an attorney disclosing information protected by the attorney-client privilege or client secrets in response to an investigative subpoena of the T.B.I.

The law firm, in representing a particular client, has made deposits and disbursement through its trust account in connection with real estate transactions of the client. The trust account used is an escrow account which involves transactions for all of the law firm's clients. The Tennessee Bureau of Investigation has issued an investigative subpoena to the bank which holds the law firm's general trust account and calls for the production of all records pertaining to the account for a period of more than a year. The particular client, who is the apparent target or subject of the investigation, has consented to the release of the information. However, the T.B.I. is requesting access to information pertaining to the entire account involving clients who have neither received notice of the investigation nor given consent for release of information.

The language and opinion cited in ABA Opinion 250 (1943) is adopted herein as follows:

The purposes and necessities of the relation between a client and his attorney require, in many cases, on the part of the client, the fullest and freest disclosures to the attorney of the client's objects, motives and acts. This disclosure is made in the strictest confidence, relying upon the attorney's honor and fidelity. To permit the attorney to reveal to others what is so disclosed would be not only a gross violation of a sacred trust upon his part, but it would utterly destroy and prevent the usefulness and benefits to be derived from professional assistance. Based upon considerations of public policy, therefore, the law wisely declares that all confidential communications and disclosures, made by a client to his legal adviser for the purpose of obtaining his professional aid or advice, shall be strictly privileged; -- that the attorney shall not be permitted, without the consent of his client -- and much less will be compelled -- to reveal or disclose communications made to him under such circumstances.

The attorney is ethically obligated to resist disclosing confidential information relating to clients not involved in the T.B.I. investigation, and to invoke all available legal remedies against such disclosure.

This 3rd day of September, 1981.

ETHICS COMMITTEE:

Randall Burcham

W. H. Lassiter

George Morrow

APPROVED AND ADOPTED BY THE BOARD