Attorney-Client Privilege and Federal Subpoenas

| by gs262000@gmail.com

Last Updated on: 21st September 2023, 11:03 pm

 

Attorney-Client Privilege and Federal Subpoenas

When clients share sensitive information with their attorneys, they expect that information to remain confidential. Attorney-client privilege protects most communications between an attorney and client from compelled disclosure. However, attorney-client privilege is not absolute. Federal agencies and courts can sometimes compel attorneys to disclose privileged information through subpoenas.

This article provides an overview of attorney-client privilege, how federal subpoenas can overcome the privilege, and strategies for protecting privileged communications when faced with a federal subpoena. It aims to help attorneys and clients understand their rights and obligations when privileged information is sought in federal investigations and litigation.

What is Attorney-Client Privilege?

Attorney-client privilege protects confidential communications between attorneys and clients made for the purpose of obtaining legal advice. The privilege encourages open and honest communication, which promotes the administration of justice. Attorney-client privilege is the oldest evidentiary privilege recognized under American law. It is so highly regarded that it is considered sacrosanct.

For attorney-client privilege to apply, several conditions must be met:

• There must be an attorney-client relationship
• The communication must be made in confidence
• The communication must involve legal advice or services
• The communication must stay confidential (privilege can be waived)

Attorney-client privilege protects more than just advice provided by the attorney. It also protects information gathered by the attorney from the client to inform that advice. It applies to communications in any form, including written documents, email, phone calls, and in-person conversations.

Attorney-client privilege belongs to the client, not the attorney. Only the client can decide to waive the privilege and allow privileged communications to be revealed. Attorneys have an ethical obligation to assert the privilege and protect client confidences, even if the client has waived it.

When Can Federal Subpoenas Overcome Privilege?

In certain situations, federal agencies and courts can compel attorneys to disclose privileged information through subpoenas. Subpoenas are written commands ordering someone to produce documents, provide testimony, or both. Federal subpoenas are powerful investigative tools that should not be ignored.

Two types of federal subpoenas could potentially overcome attorney-client privilege:

• Trial subpoenas issued under Federal Rule of Civil Procedure 45. These subpoenas are used in federal civil lawsuits and allow parties to obtain documents and testimony from non-parties.
• Grand jury subpoenas issued under Federal Rule of Criminal Procedure 17. Federal prosecutors use these to investigate crimes and obtain evidence to present to grand juries.

Attorney-client privilege can sometimes be overcome using the “crime-fraud exception.” This provides that communications furthering ongoing or future criminal or fraudulent activities are not protected. So if attorneys are consulted to further a crime or fraud, those communications would not be privileged. This exception rarely applies in civil cases.

Privilege can also be overcome when clients affirmatively rely on attorney advice as a defense. For example, if a client is sued for discrimination and claims “my attorney advised me this was legal,” the advice would no longer be privileged. This is because the client placed the substance of the advice at issue by using it as a defense.

In federal criminal cases, subpoenas can sometimes overcome privilege using the “legal advice” exception under Federal Rule of Evidence 502(a). This provides that disclosure of privileged information to a federal office or agency does not operate as a waiver if the disclosure is inadvertent and the holder took reasonable steps to prevent it.

Finally, privilege may be overcome if attorneys are alleged to have participated in a crime or fraud with the client. But the crime-fraud exception applies only if there is a valid basis for believing the attorney was involved in wrongdoing.

Strategies for Protecting Privilege Against Subpoenas

When faced with a federal subpoena seeking potentially privileged information, attorneys should consider several strategies to protect their clients. Here are some tips:

• Carefully review the subpoena to determine what information is sought and whether any privileged communications are implicated.
• Assert all potential claims of attorney-client privilege and explain the legal basis for withholding information in written responses.
• Negotiate with the issuing agency or party to narrow the scope of the subpoena and exclude privileged communications.
• Move to quash or modify the subpoena if negotiations fail. Seek a protective order from the court limiting disclosure.
• Only disclose factual information, not confidential attorney-client communications or legal advice.
• If any disclosure is required, limit it as much as possible. Provide oral testimony rather than documents if possible.
• Request in camera review if the court needs to inspect disputed communications to decide on privilege.
• Seek interlocutory appeal if the court orders disclosure over claims of privilege.

Following these steps helps demonstrate a good faith effort to protect privileged communications. Attorneys should always consult ethics rules and document efforts taken to assert privilege on behalf of clients.

Waiving Privilege and Voluntary Disclosure

Sometimes it may benefit clients to voluntarily waive privilege and disclose communications to federal officials. This may persuade agencies to narrow the scope of investigations or provide evidence of cooperation. Clients hold the privilege and can decide to waive it.

However, voluntary waiver comes with risks. Courts may find a subject matter waiver occurred that requires disclosing related privileged communications on the same topic. There is also the risk of inadvertent waiver if privileged information is carelessly disclosed.

If voluntary disclosure is on the table, attorneys should counsel clients on the legal risks and benefits. Seek confidentiality agreements with agencies limiting the scope of waiver. Only disclose discrete communications helpful to resolving the matter. With careful planning, some disclosure can be made without waiving privilege entirely.

Conclusion

Attorney-client privilege encourages candid communication and is essential to effective legal representation. However, federal subpoenas can sometimes overcome the privilege. Attorneys must understand when privilege applies and how to protect confidential client information. Carefully asserting privilege while responding to federal investigations is key.

With a few exceptions, attorney-client privilege remains a stalwart defense against revealing sensitive communications. Attorneys should always advise clients of the benefits of keeping communications confidential. Open communication allows attorneys to provide clients with informed legal advice.