Criminal Defense Lawyers

Protecting Client Confidentiality When Federal Subpoenas Seek Law Firm Records

Protecting Client Confidentiality When Federal Subpoenas Seek Law Firm Records

When a federal agency serves a law firm with a subpoena seeking client records, it can place attorneys in a difficult position between complying with the subpoena and protecting client confidentiality. Attorneys have an ethical duty to keep client information confidential under attorney-client privilege. However, defying a federal subpoena could lead to contempt charges. Understanding how to respond appropriately is critical for law firms to avoid liability.

Notifying Clients of the Subpoena

The first step when served with a federal subpoena should be to notify affected clients. Under ABA Model Rule 1.6, attorneys must inform clients if they receive a request for client information. This allows the client to file a motion to quash the subpoena if desired. Notification should happen as soon as reasonably possible upon receiving the subpoena.

Assessing Grounds to Quash the Subpoena

Upon client notification, the attorney should assess whether reasonable grounds exist to quash or modify the subpoena under Federal Rule of Civil Procedure 45(d)(3). Possible bases to quash include:

• Overly burdensome requests: If complying with the subpoena would be unreasonably costly or time-consuming
• Privileged information: If the subpoena seeks information protected by attorney-client privilege or work product doctrine
• Undue burden: If the subpoena would violate other laws or impose undue burden without sufficient need

If reasonable grounds exist, the attorney should file a motion to quash on behalf of the client. This helps shield the client’s confidential information.

Carefully Evaluating What Information to Disclose

If there are no viable grounds to quash the subpoena, the law firm must determine what client information it is compelled to disclose. The general standard is that attorney-client privilege only protects:

• Confidential communications: Exchanges between an attorney and client intended to be confidential
• For legal advice: The communications were for the purpose of securing legal advice

Under this standard, non-communication documents or communications with third parties receive no protection.Law firms should carefully assess each piece of requested client information to determine if privilege applies before disclosing it. Information falling outside attorney-client privilege must be produced unless it is protected by other privilege types or there is another basis for refusing disclosure.

Avoiding Privilege Waivers

It is also critical for law firms to avoid inadvertent privilege waivers when dealing with subpoenas. Disclosing privileged client communications to third parties generally waives privilege protections.To guard against waivers, law firms should:

• Set up ethical walls restricting access to subpoenaed information
• Obtain protective orders from the court shielding sensitive client data
• Use privilege logs to document what information gets disclosed

These precautions help preserve clients’ confidentiality rights in case of accidental disclosures during subpoena compliance.

Working With Clients on Joint Defense Agreements

For clients also under investigation, law firms should discuss entering into Joint Defense Agreements (JDAs). Under JDAs, clients agree to share confidential information with each other under privilege to coordinate legal strategies. This facilitates open communication without waiving privilege.JDAs allow law firms to provide necessary client information to other clients under investigation without violating ethical duties of confidentiality. Law firms should inform clients of their JDA option early in any joint investigation.

Special Considerations for Government Investigations

Responding to federal subpoenas gets more complicated when the investigation involves government agencies like the SEC, FBI, or IRS. Targets of government probes often need to take coordinated parallel legal actions.Unique privilege considerations also emerge during government investigations. For instance, the IRS takes the position that there is no attorney-client privilege protecting tax advice from disclosure. Law firms must understand these nuances to effectively shield client confidentiality.

Establishing Law Firm Policies and Safeguards

Given the many complexities surrounding federal subpoenas, law firms should implement policies and controls governing information disclosures. Key measures to consider include:

• Document management protocols classifying and restricting sensitive client data
• Cybersecurity protections like encryption safeguarding stored client information
• Internal training on responding to subpoenas and preserving privilege
• Designating qualified personnel to handle subpoena responses

These proactive steps help law firms adhere to ethical duties around confidentiality when federal agencies come seeking records. They also minimize potential privilege waivers.

Consulting Outside Ethics Experts When Needed

In tricky situations involving subpoenas, law firms may benefit from outside guidance on balancing duties to clients and the court. Reaching out to professional responsibility experts or ethics hotlines can provide a sounding board when responding to subpoenas. These resources help law firms thoughtfully assess risks around client confidentiality.

Communicating Each Step to Clients

Throughout the subpoena response process, it remains critical for law firms to keep clients updated on what information gets produced. Transparent communication is key, so clients understand the protections in place and can intercede with objections if needed. Documenting these communications also safeguards the law firm down the line.

Resources

For further reading on protecting client confidentiality when dealing with subpoenas, check out the following additional resources:What to Do When You Receive a Federal Grand Jury Subpoena – American Bar Association guideResponding to Subpoenas: A Primer – Law360 articleHow To Handle Document Requests and Subpoenas – CLE course on responding appropriately to information requests