Options for Fighting Federal Subpoenas of Attorney-Client Communications

Options for Fighting Federal Subpoenas of Attorney-Client Communications

Getting a federal subpoena for attorney-client communications can be super stressful. As a lawyer, you have an ethical duty to protect your client’s confidential information. But you also have to follow the law and comply with valid court orders. What do you do when you get stuck between a rock and a hard place?

Luckily, you have options. Let’s walk through some ways you might be able to fight a federal subpoena for attorney-client communications.

File a motion to quash

One of the first things to try is filing a motion to quash the subpoena. This asks the court to cancel or modify the subpoena because it is improper or oppressive in some way. Some common arguments for quashing a subpoena for attorney-client communications include:

• The information sought is protected by attorney-client privilege
• The subpoena is overbroad or seeks irrelevant information
• Complying with the subpoena would be unduly burdensome

To succeed on a motion to quash, you’ll need to provide declarations or other evidence to support your arguments. For example, if you claim complying would be unduly burdensome, you may need to estimate the number of hours and costs involved. The court will balance your arguments against the government’s need for the information.

Assert attorney-client privilege

Attorney-client privilege protects confidential communications between attorney and client made for the purpose of obtaining legal advice. This privilege is sacred in the legal profession. It exists to encourage clients to be fully open and honest with their lawyers.

If attorney-client privilege applies, the government is not entitled to the communications unless an exception exists. You can refuse to disclose privileged communications in response to a subpoena. If the government disagrees, it will have to file a motion to compel and prove the privilege doesn’t apply.

There are exceptions, though. The main one is the crime-fraud exception. If the client was using the attorney’s services to commit or cover up a crime, the privilege may be lost. The government has to show some evidence the exception could apply before they can get access to privileged communications.

Argue the communications are attorney work product

Attorney work product is also protected from disclosure. This doctrine protects materials lawyers prepare in anticipation of litigation. It covers things like internal memoranda, notes, interview recordings, and legal research.

Like attorney-client privilege, work product protection is not absolute. The government may be able to overcome it by showing a substantial need for the materials and that it can’t get the information elsewhere without undue hardship. But absent this showing, you can refuse to turn over attorney work product.

Redact protected information

If you have documents with a mix of protected and unprotected information, consider redacting the privileged or confidential parts. For example, you may be able to redact confidential client information but produce the rest.

This allows you to comply with part of the subpoena while still withholding privileged materials. Be careful, though – if you fail to convince the court your redactions were proper, you could be ordered to produce the documents in full.

Negotiate with the government

Before fighting a subpoena, it’s often worth trying to negotiate with the government. Explain your concerns and see if you can reach a compromise. For example, you may be able to agree on a more narrowly tailored subpoena or alternative sources of information.

If negotiations fail, you can still pursue motions to quash or assert privilege arguments. But negotiating first is cheaper and may lead to a quick resolution. The government may be willing to make concessions if you show them you’re acting in good faith.

Seek a protective order

Another option is asking the court for a protective order. This is like a motion to quash but asks the court to set restrictions on how the government handles the produced information. For example, the court could prohibit the government from disclosing the materials to third parties or limit their use to specific purposes.

Protective orders help reduce the risk of harm from disclosing sensitive materials. They are commonly used in cases involving trade secrets, classified information, or privileged communications. You can seek a protective order alongside other objections to the subpoena.

Comply under protest

If you exhaust all options and the court orders compliance, you may have to turn over the subpoenaed materials. You can do this under protest to preserve your objections for appeal. Be sure to get a written order compelling production first.

Complying under protest means you provide a written statement saying you are only producing the materials because of the court’s order over your objections. This preserves your right to appeal the order requiring disclosure. An appeals court may agree the subpoena was improper and reverse the disclosure order.

Appeal an adverse order

If the court rejects your efforts to quash or limit the subpoena, you may be able to file an appeal. Timing is critical, though. Once you comply with the order, the issue may become moot. That’s why complying “under protest” is so important.

The first step is filing an interlocutory appeal while the case is still pending in district court. But the grounds for interlocutory appeals are limited, so this option is not always available. After final judgment, however, you can appeal any disclosure orders you protested.

An appeals court will apply an “abuse of discretion” standard to review the lower court’s order. This means you have to show the lower court made a mistake of law or clearly erroneous factual findings. This is a high bar but still provides a last option for fighting improper subpoenas.

Refuse to comply (and risk contempt)

As a last resort, you could refuse to comply with a disclosure order and risk being held in contempt of court. This is an extremely serious decision with potentially severe consequences. You could face fines, jail time, disciplinary action by the bar, or even disbarment. Most lawyers will go to great lengths to avoid being held in contempt.

That said, there may be rare cases where refusing to comply is the only ethical option. For example, if complying would mean revealing confidential information that could result in someone’s death. You should exhaust all other options first and consult closely with professional responsibility counsel before pursuing this risky path.

Get experienced help

Fighting a federal subpoena is complex and high-stakes. Having an experienced attorney represent you can increase your odds of success. Look for a lawyer who regularly handles subpoena litigation, criminal investigations, and privilege issues. Don’t go it alone against the DOJ – get help from someone who knows this area of law inside and out.

The bottom line is that you have options when facing a federal subpoena for attorney-client communications. File a motion to quash, assert privilege claims, seek a protective order, negotiate with the government, appeal if necessary, and get experienced counsel on your side. With the right strategy, you can push back against overbroad subpoenas and protect your client’s confidentiality.