NATIONALLY RECOGNIZED FEDERAL LAWYERS
Last Updated on: 17th September 2023, 11:38 pm
Ethics for Attorneys Representing Clients Issued Federal Subpoenas
When a clients been issued a federal subpoena, it can be a stressful and confusing time for them. As their attorney, you have an ethical responsibility to provide competent, diligent representation while maintaining client confidentiality. This article will examine some of the key ethical issues attorneys face when representing clients with federal subpoenas, and provide guidance on best practices.
Advising the Client on Responding to the Subpoena
One of the first things you’ll need to do is review the subpoena with your client to understand what information is being requested, and from whom. Explain to them clearly what their options are for responding, including producing documents, providing testimony, filing motions to quash or modify the subpoena, or asserting privileges.1 Outline the risks and benefits of each approach so they can make an informed decision. Your duty is to provide competent, independent advice based on your professional judgement – not just tell them what they want to hear.2
When reviewing documents with your client, keep in mind your duty to maintain confidentiality. Don’t disclose more information than necessary when communicating about responsive documents.3 If privileged information is requested, explain privilege and the option to prepare a privilege log detailing documents withheld on this basis.
If testimony is required, prepare your client by explaining the process and what to expect. Caution them not to speculate or volunteer information beyond what’s asked. Object on the record to inappropriate questions.
Your client may ask if it’s possible to avoid complying altogether. You must advise them that failure to comply could result in being held in contempt of court resulting in fines or jail time.4 While you can seek to modify or quash an unduly burdensome or vague subpoena, or assert privileges, you cannot counsel your client to simply ignore it.
Avoiding Conflicts of Interest
In some cases, representing a client with a federal subpoena can raise conflict of interest issues. For example, if you previously represented the party issuing the subpoena, or you currently represent other clients with interests adverse to the subpoenaed client. Analyze whether any conflicts exist and avoid them if necessary by declining or withdrawing from representation.5
You also need to avoid conflicts that could arise between clients if you represent multiple parties receiving related subpoenas in the same matter. While joint representation can sometimes be permissible with informed consent, tread carefully to ensure the clients’ interests don’t diverge.6
Fees and Billing
The costs associated with responding to subpoenas can add up quickly, so it’s important to discuss fees and billing up front. Explain how you charge for your services so there are no surprises. Hourly billing is most common, but fixed or flat fees may be appropriate for certain tasks. Get a signed engagement letter formalizing the fee agreement.
Be transparent about expenses you may bill, like photocopying, legal research, mileage, and other out of pocket costs. If working with e-discovery vendors, pass those costs through without markup. Keep detailed time and expense records, provide regular invoices, and communicate if the scope of representation changes significantly from the initial estimate.
Attorneys have an ethical duty to maintain client confidentiality, even in the face of a subpoena.7 However, this isn’t absolute. Under certain circumstances, a court may order disclosure of confidential information if the need outweighs the harm of disclosure. This is determined on a case-by-case basis.
If you’re ordered to reveal confidential client information over your objection, consult your client about appealing the order or seeking alternatives, like filing documents under seal. If all options are exhausted, you must comply with the court’s order, but should limit disclosure only to what is expressly required.
What about using client confidential information with AI applications? While no definitive standards exist yet, it’s wise to treat AI like any vendor assisting with representation and ensure proper confidentiality safeguards are in place.8 Disclose AI use to clients and get informed consent.
Competence in Emerging Technologies
Responding to federal subpoenas often involves reviewing and producing electronically stored information (ESI). As technology advances, attorneys must ensure they understand how to competently handle ESI from initial preservation through production. Lack of competence in using appropriate technologies and best practices can expose clients to sanctions or data breaches.9
AI is also making inroads in legal practice, including for document review. If you plan to use AI, ensure you sufficiently understand the technology’s capabilities and limitations, and that it’s been properly trained on enough relevant data to perform adequately. Improper use could result in flawed analysis or missed documents. The buck stops with you as the attorney, not the technology vendor.
Effective attorney-client communication is key when dealing with subpoenas. Explain every step so the client understands their options, obligations, risks and costs. Answer questions promptly and keep them apprised of progress. Communication should be clear, direct, and in plain language the client can understand.
Manage expectations realistically. Subpoenas can be time-consuming and costly. Lack of candor about the challenges could erode trust. If delays arise or the scope expands, keep the client closely looped in.