Attorney-Client Privilege and Federal Subpoenas

When Federal Subpoenas Seek Attorney-Client Info: A Delicate Balancing Act

As a lawyer, I know it’s tricky when you get a subpoena from the feds asking for confidential client information. You want to protect your client’s secrets, but you also have to follow the law. This article looks at some of the issues around attorney-client privilege and federal subpoenas.

What Exactly is Attorney-Client Privilege?

Attorney-client privilege is a legal rule that keeps communications between lawyers and clients confidential. The idea is to encourage open discussion so people feel comfortable being 100% honest with their lawyers. For the privilege to apply, a few things have to be true:

• It’s a communication between a client and a lawyer acting as a lawyer
• It was confidential when made
• The purpose was to get or give legal advice

If those elements exist, neither the lawyer nor the client can be forced to share what they talked about in court. The privilege continues even after the client dies or the case ends. It’s a cornerstones of the legal profession.

When Can the Privilege Be Broken?

There are some exceptions where attorney-client privilege doesn’t apply. For example, talks in furtherance of a crime or fraud aren’t protected. Discussions about possible future wrongdoing sometimes fall outside the privilege too. Also, talks related to a dispute between the lawyer and client, like over legal fees, may not be privileged.

Importantly, the privilege can be destroyed if someone else is part of the communication besides the lawyer, client, and their staff. But some states give limited protection to talks with close family or corporate employees who need to know.

Complying with a Federal Subpoena

When a lawyer gets a federal subpoena related to a client, they first must tell the client. Not giving prompt notice could be an ethics violation. Next, the lawyer and client discuss whether there are grounds to challenge the subpoena through a motion to quash or modify it. If they decide to fight it, the lawyer files the motion for the client.

Motions to quash often argue the subpoena seeks privileged materials or is too broad, irrelevant, vague or burdensome. The lawyer may also say the subpoena was improperly issued or served. If successful, the subpoena is withdrawn or limited. If not, the lawyer must comply or risk being held in contempt.

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In rare cases, a lawyer might avoid complying by asserting their Fifth Amendment right against self-incrimination. But this only applies if producing documents would involve self-incrimination. Just turning over a client’s documents doesn’t qualify.

Options if Privilege Arguments Fail

If the court rejects a privilege claim, the lawyer still has options to protect the client. They can ask for an in camera review, where the judge reviews disputed materials privately before deciding what must be disclosed. The lawyer may also seek a protective order to limit access to sensitive information. And they can appeal an order to disclose.

As a last resort, the lawyer can tell the court they ethically can’t comply, and will accept the consequences. While risky, it shows loyalty to preserving client confidences.

Ethical Considerations

Subpoenas to lawyers raise some tough ethical issues:

• Lawyers have an ethical duty to protect client confidences that can conflict with complying with lawful subpoenas.
• Subpoenas may undermine the trust needed for open lawyer-client communication.
• They can disrupt the lawyer-client relationship by creating an adversarial posture.
• Complying could expose lawyers to liability for improper disclosure.

Some argue subpoenas to lawyers threaten attorney-client relationships and our adversarial legal system. As officers of the court, lawyers face competing duties when client information is sought through proper legal channels.

Reform Proposals

There are reform proposals to better balance subpoenas to lawyers:

• Require prosecutors to show evidence can’t be obtained elsewhere before subpoenaing lawyers (see UPenn Law Review article)
• Strengthen protections for lawyer-client talks about legal advice (see NCJRS piece)
• Limit lawyer subpoenas to situations with probable cause the lawyer committed a crime (see article by Janet Hoffman)
• Make prosecutors exhaust other options first and show compelling need (see NYC Bar analysis)

Additional safeguards have been proposed too, like requiring judge approval for subpoenas to lawyers about client representation (see ABA Model Rule 3.8(e)). The goal is to strike the right balance between truth-seeking and confidentiality.

Looking Ahead

Resolving the tension between attorney-client privilege and federal subpoenas is tricky. More debate is needed to shape policies upholding both lawyers’ duties and law enforcement needs. Some reform priorities include:

• More predictable standards for when attorney-client privilege can be overcome by a subpoena
• Clearer guidance on what constitutes privileged communications versus non-privileged business discussions with in-house counsel
• Expanded in camera review powers for judges to closely examine disputed materials
• Wider availability of special masters to review subpoenaed attorney-client materials and filter privileged content
• Better coordination between bar associations and DOJ to establish consistent subpoena policies
• Increased incentives for prosecutors to only subpoena attorney evidence as a last resort
• Enhanced training for prosecutors on ethics rules around attorney subpoenas

Resolving the inherent tensions between attorney-client confidentiality and effective law enforcement remains an ongoing challenge. Constructive dialogue and level-headed reforms can help strike an appropriate balance. With care and wisdom, workable solutions can be found that uphold both the imperatives of justice and the sanctity of the attorney-client relationship.

As an attorney, I’m cautiously optimistic that progress can be made to establish fair standards around federal subpoenas seeking client information from lawyers. The legal profession has an obligation to keep pushing for policies that protect confidentiality without impeding legitimate investigative needs. It’s a nuanced issue, but I believe in time we can reach an ethical equilibrium that serves all parties.

The path forward requires patience, prudence and perspective from both attorneys and prosecutors. If we remain committed to thoughtful reforms rather than reactionary measures, solutions can be found. With open-mindedness and care on all sides, we can craft subpoena rules that uphold the principles at the heart of our profession.