Occasionally, one of us will receive a subpoena for a present or former client’s file. Sometimes it relates to a claim by a present or former spouse of the client. Sometimes the inquiring party wants to see the legal bills the client generated. Other times, it is the government investigating civil or criminal claims against the client.
If the request concerns a present client, and the client is good at paying her bill, it is not uncommon that the lawyer will object and may litigate the discoverability of the file to the full extent of the client’s assets. But what if the client is a “former” one, and there is little or no hope of payment? What if the client will not cooperate? What if you can’t even find the client?
Well, as difficult as it may be, I think the only proper response is to assert all relevant and no-frivolous objections and seek to quash the subpoena or, in the alternative, seek to limit what is turned over.
Some lawyers get confused about this because Rule 1.6 has an escape hatch that allows a lawyer to breach the duty of confidentiality to comply with “other law or a court order.” Isn’t a subpoena a court order?
Well, there was a time when the only authority who could issue a subpoena was a court. I suppose under those circumstances, a subpoena might be a court order. But now there is a statute that says that any commissioner of the Superior Court can issue a subpoena. And being a commissioner of the court does not make you a court with regard to issuing discovery orders.
Judges have been not hesitated to differentiate between a lawyer and a court when it comes to compulsory process. Subpoenas now seem to be, for all intents and purposes, requests rather than orders.
There seems to be two ways to challenge a subpoena. One is to tell the subpoenaing party that you are not going to comply and have them seek an order of compliance. The other is to file a motion to quash the subpoena or otherwise limit the scope of the discovery, as by seeking an in camera review of any documents for which a work-product or privilege claim might be asserted.
Well, the privilege belongs to the client, right? So if the client does not assert it, why should I waste my time? The Connecticut Supreme Court addressed that issue last year in a case called Woodbury Knoll v. Shipman & Goodwin. There, a law firm resisted a subpoena for billing and other records related to its representation of a client which was now suing its lawyer for malpractice. One of the claims the requesting party advanced was that the firm had no authority to raise the privilege, as it belonged to the client and not to the firm.
Not so fast! Though the privilege could only be waived by the client (or the client’s lawyer when authorized), that did not mean that only the client could or should assert a claim of privilege to shield attorney-client communications from discovery. Indeed, raising and litigating a claim of privilege is an ethical duty of the lawyer. Citing to the commentary to Rule 1.6, the court noted that lawyers served with such process had a responsibility to limit in every way possible the release of otherwise protected materials.
Woodbury Knoll also addressed a tricky question of how far a party had to go in defending the claim of privilege. Most commentators have held that a party seeking to protect this material should seek appellate review. Until Woodbury Knoll, that was hard, because the only way to get interlocutory appellate review appeared to be having the lawyer held in contempt. That’s what New Haven Public Defender Tom Ullman did in Ullman v. State when he refused to testify about what discussions he may have had with his client in a later witness tampering trial.
Noting that forcing a lawyer to choose between the Scylla of violating her ethical duty to her client and the Charybdis of defying a court order so that she could be held in contempt and, thus, have grounds for appellate review, was a Hobson’s choice that should not be thrust on the bar, the court held that appellate review was available in such a situation under a writ of error. The court also, mercifully, declined to create a rule mandating that the lawyer or law firm produce a privilege log describing every piece of paper or data entry that was in the file.
I suppose in the most perfect world, the court could have articulated a “use it or lose it” rule and transferred the entire responsibility for asserting a privilege onto the client. But Woodbury Knoll reached a pretty good result anyway. •