NASSAU COUNTY BAR ASSOCIATION

COMMITTEE ON PROFESSIONAL ETHICS

OPINION 2011-01


Topic

The duties of an attorney who is subpoenaed to produce records and to testify concerning

a prior engagement.

Digest

An attorney who is subpoenaed to produce records and to testify concerning a prior

engagement should attempt to contact the former client to communicate with her regarding

whether she should and will consent to the disclosure of the records and to his testimony. If the

attorney is unable to contact his former client, or if the former client will not give her consent for

the attorney to comply with the subpoena, the attorney should determine whether any of the

information called for by the subpoena is protected by the attorney-client privilege, the work

product doctrine, or the broader duty of confidentiality. The attorney should assert on his former

client’s behalf all nonfrivolous arguments that the subpoena is not authorized by law, the

information sought is protected against disclosure by an applicable privilege or other law, or the

subpoena is invalid or defective for some other reason.

In the event the court orders the attorney to comply with all or part of the subpoena, the

attorney should attempt to communicate with his former client about the possibility of an appeal

or further challenge. If the former client authorizes an appeal, the attorney may appeal but is not

required to do so unless the scope of the original engagement with the former client obligated the

attorney to pursue an appeal in this situation. If the attorney does not seek review or if an appeal

is unsuccessful, the attorney may comply with the order. In such case, the attorney should seek

appropriate protective orders or other arrangements to the fullest extent practicable so that the

disclosure will be made in a manner that limits access to the information.

Code Provisions

Rule 1.0(j)

Rule 1.4(a)(1)(i)

Rule 1.4(b)

Rule 1.6(a)

Rule 1.6(a)(1)

Rule 1.6(a)(3)

Rule 1.6(b)

Rule 1.6(b)(5)

Rule 1.6(b)(6)

Rule 1.9(c)

Rule 1.15(a)

Rule 1.15(c)(4)

Rule 3.1(a)

Rule 3.1(b)

Facts Presented

The inquiring attorney reports that he represented an incarcerated woman in litigation (of

an unspecified nature) several years ago. An acquaintance of the former client acted as liaison

between the attorney and his client while she was incarcerated. When the incarcerated client’s

case was settled, the client’s acquaintance arrived at the attorney’s office and picked up a check

for the net settlement proceeds.1 Shortly thereafter, however, the attorney received a letter from

his client requesting that the net settlement proceeds be forwarded directly to her. The attorney

placed a stop payment order on the first check, and issued a second check to the client. Despite

the stop payment order, the client’s acquaintance endorsed the first check and transferred the

check to an innocent third party. The innocent third party negotiated the check, and the bank paid

it upon presentation. The bank, upon learning of its error, debited the account of the innocent

third party. The innocent third party sued the bank, and the bank issued a subpoena for the

attorney’s records and for his testimony. The attorney has turned to us for guidance.

Inquiry

To what extent may a subpoenaed attorney produce records and give testimony regarding

the facts and circumstances of a prior engagement?

Determination

A subpoenaed attorney may not produce records or give testimony regarding the facts

and circumstances of a prior engagement that would fall within the definition of “confidential

information” (i.e. “information gained during or relating to the representation of a client,

whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be

embarrassing or detrimental to the client if disclosed, or (c) information that the client has
requested be kept confidential”) unless the client gives her informed consent, or unless a court

orders the attorney to do so, or unless pursuant to another exception in Rule 1.6(b) applies.

Governing Authority

Rule 1.6 (“Confidentiality of Information”) of the New York Rules of Professional

Conduct sets forth a lawyer's duty of confidentiality, defines "confidential information," and sets

forth various exceptions to the duty of confidentiality. The first part of the rule, which defines

the duty of confidentiality, provides, in pertinent part:

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule,

or use such information to the disadvantage of a client or for the advantage of the

lawyer or a third person unless:

(1) the client gives informed consent, as defined in Rule 1.0(j)2

(2) …; or

(3) the disclosure is permitted by paragraph (b).

The next part of Rule 1.6(a), which has no separate number, defines confidential information for

purposes of the Rules of Professional Conduct as follows:

“Confidential information” consists of information gained during or relating to the

representation of a client, whatever its source, that is (a) protected by the attorney-client

privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c)

information that the client has requested be kept confidential….

Paragraph (b) sets forth a series of exceptions. The exceptions pertinent to the inquiry here

provide as follows:

(b) A lawyer may reveal or use confidential information to the extent the lawyer

reasonably believes necessary:

… (5) … to defend the lawyer or the lawyer’s employees and associates against

an accusation of wrongful conduct; or

(6) when permitted or required under these Rules or to comply with other law or

court order. [Emphasis added.]

The New York State Bar Association has published Comments that are intended to

provide guidance for attorneys in interpreting the Rules of Professional Conduct. The Appellate

Division of the New York State Supreme Court has not adopted the Comments and they are not

controlling. Nevertheless, the Comments explain and illustrate the meaning and purposes of the

Rules, and are useful as guides to interpretation.

The Comments to Rule 1.6 provide useful guidance here. Comments [3] and [12]-[14]

state, in pertinent part, as follows (with emphasis added):

[3] The principle of client-lawyer confidentiality is given effect in three related bodies of

law; the attorney-client privilege of evidence law, the work product doctrine of civil

procedure and the professional duty of confidentiality established in legal ethics codes.

The attorney-client privilege and the work-product doctrine apply when compulsory

process by a judicial or other governmental body seeks to compel a lawyer to testify or

produce information or evidence concerning a client. The professional duty of client-lawyer

confidentiality, in contrast, applies to a lawyer in all settings and at all times,

prohibiting the lawyer from disclosing confidential information unless permitted or

required by these Rules or to comply with other law or court order. The confidentiality

duty applies not only to matters communicated in confidence by the client, which are

protected by the attorney-client privilege, but also to all other information gained during

and relating to the representation, whatever its source. The confidentiality duty, for

example, prohibits a lawyer from volunteering confidential information to a friend or to

any other person except in compliance with the provisions of the Rule, including the

Rule’s reference to other law that may compel disclosure….

[12] Paragraph (b) does not mandate any disclosures. However, other law may

require that a lawyer disclose confidential information. Whether such a law supersedes

Rule 1.6 is a question of law beyond the scope of these Rules. When disclosure of

confidential information appears to be required by other law, the lawyer must consult

with the client to the extent required by Rule 1.43 before making the disclosure, unless

such consultation would be prohibited by other law. If the lawyer concludes that other

law supersedes this Rule and requires disclosure, paragraph (b)(6) permits the lawyer

to make such disclosures as are necessary to comply with the law.

[13] A tribunal or government entity claiming authority pursuant to other law

to compel disclosure may order a lawyer to reveal confidential information. Absent

informed consent of the client to comply with the order, the lawyer should assert on

behalf of the client nonfrivolous arguments that the order is not authorized by law, the

information sought is protected against disclosure by an applicable privilege or other

law, or the order is invalid or defective for some other reason. In the event of an adverse

ruling, the lawyer must consult with the client to the extent required by Rule 1.4 about the

possibility of an appeal or further challenge, unless such consultation would be prohibited

by other law. If such review is not sought or is unsuccessful, paragraph (b)(6) permits the

lawyer to comply with the order.

[14] Paragraph (b) permits disclosure only to the extent the lawyer reasonably

believes the disclosure is necessary to accomplish one of the purposes specified…. If the

disclosure will be made in connection with an adjudicative proceeding, the disclosure

should be made in a manner that limits access to the information, and appropriate

protective orders or other arrangements should be sought by the lawyer to the fullest

extent practicable.

Rule 1.9(c) applies the duty of confidentiality to former clients. The inquiring attorney

did not expressly state that the incarcerated woman is a former client, but since he represented

her several years ago, that seems likely, and we are assuming for purposes of this opinion that

she is a former client rather than a current client. Rule 1.9(c) provides as follows:

(c) A lawyer who has formerly represented a client in a matter or whose present

or former firm has formerly represented a client in a matter shall not thereafter:

(1) use confidential information of the former client protected by Rule 1.6

to the disadvantage of the former client, except as these Rules would permit or

require with respect to a current client or when the information has become

generally known: or

(2) reveal confidential information of the former client protected by Rule

1.6 except as these Rules would permit or require with respect to a current client.

Application of Rules to Facts Presented

Applying Rules 1.6 and 1.9(c) to the facts presented, the Committee concludes that the

attorney should consider whether it is in his former client’s best interests to consent to the

disclosure of the documents and to consent to the testimony necessary to comply with the

subpoena. (It might not be in her interest, for example, if those disclosures would tend to

incriminate her. We have no reason to believe they would, based on the limited facts supplied in

the inquiry, but the attorney might know or learn of additional facts bearing on this issue.) Once

the attorney has considered his former client’s interests, he should attempt to contact her so that

the attorney can communicate with the former client regarding whether she should and will

consent to the disclosure of his records and to his testimony.

Although Rule 1.4 on its face requires communication only with current clients, we think

that it also requires an attorney to communicate with a former client if he is seeking the former

client’s informed consent to the disclosure of information responsive to the subpoena that would

fall within the definition of “confidential information” (i.e. “information gained during or

relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential”).

If, after a reasonably diligent effort, the attorney is unable to contact his former client, or

if his former client will not give her consent for the attorney to comply with the subpoena, he

should determine whether any of the information called for by the subpoena is protected by the

attorney-client privilege, the work product doctrine, the duty of confidentiality under Rules 1.6

and 1.9(c), or other law. The attorney should also perform the research necessary to evaluate the

legal validity of the bank’s subpoena. He should then assert on his former client’s behalf all

nonfrivolous arguments4 that the subpoena is not authorized by law, the information sought is

protected against disclosure by an applicable privilege or other law, or the subpoena is invalid or

defective for some other reason.5

The application of the attorney-client privilege and the work product doctrine are legal

questions beyond the scope of this Committee’s mandate. However, generally only

communications made in confidence between a client and her lawyer for the purpose of

rendering legal services fall within the scope of the attorney client privilege. The inquiring

attorney’s own research and analysis may indicate, for example, that instructions from his former

client were intended to be communicated to a third party (such as the intermediary or the bank)

and are not protected by the attorney-client privilege. Moreover, any communications between

the attorney and a third party are unlikely to fall within the scope of the attorney-client privilege.

However, information that is not privileged may still fall within the definition of confidential

information for purposes of Rule 1.6 and, if so, the information may not be disclosed absent the
former client’s informed consent or an exception to Rule 1.6(a) such as a valid court order (see,

Rule 1.6(b)(6)).

In the event the court orders the attorney to comply with all or part of the bank’s

subpoena, he should attempt to communicate with his former client about the possibility of an

appeal or further challenge. If the former client authorizes an appeal, the attorney may appeal but

is not required to do so unless the scope of the original engagement with the former client

obligated him to pursue an appeal in this situation. If the attorney does not seek review or if an

appeal is unsuccessful, Rule 1.6(b)(6) permits the attorney to comply with the order.6 In such

case, the attorney should seek appropriate protective orders or other arrangements to the fullest

extent practicable so that the disclosure will be made in a manner that limits access to the

information.

This inquiry relates to the attorney’s obligations in connection with a subpoena issued by

the bank in litigation brought against the bank by an innocent third party to whom his check was

negotiated. The inquiring attorney did not indicate that any claim has been made against him.

Nevertheless, it is worth noting that Rule 1.6(b)(5) would permit his use of confidential

information to the extent that he reasonably believes is necessary to defend himself against an

accusation of wrongful conduct. Comment [10] to Rule 1.6 provides, in pertinent part, that:

Where a claim or charge of any kind alleges misconduct of the lawyer related to the

representation of a current or former client, the lawyer may respond to the extent the

lawyer reasonably believes necessary to establish a defense. Such a claim can arise in a

civil, criminal, disciplinary or other proceeding and can be based on a wrong allegedly

committed by the lawyer against the client or on a wrong alleged by a third person, such

as a person claiming to have been defrauded by the lawyer and client acting together or

by the lawyer acting alone…. A lawyer may make the disclosures authorized by Rule

1.6(b)(5) through counsel….”

Conclusion

An attorney who is subpoenaed to produce records and to testify concerning a prior

engagement should attempt to contact the former client to communicate with her regarding

whether she should and will consent to the disclosure of the records and to his testimony.

If the attorney is unable to contact his former client, or if the former client will not give

her consent for the attorney to comply with the subpoena, the attorney should determine whether

any of the information called for by the subpoena is protected by the attorney-client privilege, the

work product doctrine, or the broader duty of confidentiality. The attorney should assert on his

former client’s behalf all nonfrivolous arguments that the subpoena is not authorized by law, the

information sought is protected against disclosure by an applicable privilege or other law, or the

subpoena is invalid or defective for some other reason.

In the event the court orders the attorney to comply with all or part of the subpoena, the

attorney should attempt to communicate with his former client about the possibility of an appeal

or further challenge. If the former client authorizes an appeal, the attorney may appeal but is not

required to do so unless the scope of the original engagement with the former client obligated the

attorney to pursue an appeal in this situation.

If the attorney does not seek review or if an appeal is unsuccessful, the attorney may

comply with the order. In such case, the attorney should seek appropriate protective orders or

other arrangements to the fullest extent practicable so that the disclosure will be made in a

manner that limits access to the information.

[Approved by the Committee on November 9, 2011]

 

 

 

1 The inquiring attorney did not indicate whether his client requested that he deliver a check for the net settlement

proceeds to the client’s acquaintance. Rule 1.15(a) provides that “[a] lawyer in possession of funds or other property

belonging to another person, where such possession is incident to his or her practice of law, is a fiduciary…”

Comment [1] to Rule 1.15 provides, in pertinent part, that “[a] lawyer should hold the funds and property of others

using the care required of a professional fiduciary.” We assume for the purposes of this opinion that the attorney’s

client had authorized him to deliver the check to the client’s acquaintance. If so, the attorney was required to

comply with the request pursuant to Rule 1.15(c)(4), which provides that a lawyer shall “promptly pay or deliver to

the client or third person as requested by the client or third person the [escrow] funds, securities, or other properties

in the possession of the lawyer that the client or third person is entitled to receive.”

2 Rule 1.0(j) provides as follows:
“Informed consent” denotes the agreement of a person to the proposed course of conduct after the lawyer

has communicated information adequate for the person to make an informed decision, and after the lawyer

has adequately explained to the person the material risks of the proposed course of conduct and reasonably

available alternatives.

3 Rule 1.4(a)(1)(i) provides: “A lawyer shall promptly inform the client of any decision or circumstance with respect

to which the client’s informed consent is required by these Rules.” Rule 1.4(b) provides: “A lawyer shall explain a

matter to the extent reasonably necessary to permit the client to make informed decisions regarding the

representation.”

4 Rule 3.1(a) provides that “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein,

unless there is a basis in law and fact for doing so that is not frivolous….” Rule 3.1(b) defines the term “frivolous”

for purposes of Rule 3.1.

5 As a practical matter, the inquiring attorney may find that his professional liability insurance carrier will provide

him with counsel in connection with his obligations under the subpoena, and in any motion practice that may be

required under the Rules of Professional Conduct and related laws. This will depend on the terms of the attorney’s

professional liability insurance policy. We raise this only as a possibility worth exploring.

6 Rule 1.6(b)(6) is permissive. It does not, by itself, require the attorney to comply with the order. Rule 8.4(d)

provides that a lawyer or law firm shall not “engage in conduct that is prejudicial to the administration of justice”.

Comment [4] to Rule 8.4, as amended by the New York State Bar Association in June of 2011, provides as follows:

A lawyer may refuse to comply with an obligation imposed by law if such refusal is based upon a

reasonable good-faith belief that no valid obligation exists because, for example, the law is

unconstitutional, conflicts with other legal or professional obligations, or is otherwise invalid. As set forth

in Rule 3.4(c), a lawyer may not disregard a specific ruling or standing rule of a tribunal, but can take

appropriate steps to test the validity of such a rule or ruling.
Of course, a lawyer who refuses to comply with a court order – even in good faith -- risks a contempt of court.

 


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