Covered by NYDaily News. Las Vegas man accused of threatening a prominent attorney and making vile remarks.
Covered by New York Times, and other outlets. Fake heiress accused of conning the city’s wealthy, and has an HBO special being made about her.
Accused of stalking Alec Baldwin. The case garnered nationwide attention, with USAToday, NYPost, and other media outlets following it closely.
Juror who prompted calls for new Ghislaine Maxwell trial turns to lawyer who defended Anna Sorokin.
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In 2022, Netflix released a series about one of Todd’s clients: Anna Delvey/Anna Sorokin.
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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.
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.
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:
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.
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:
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.
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:
These precautions help preserve clients’ confidentiality rights in case of accidental disclosures during subpoena compliance.
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.
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.
Given the many complexities surrounding federal subpoenas, law firms should implement policies and controls governing information disclosures. Key measures to consider include:
These proactive steps help law firms adhere to ethical duties around confidentiality when federal agencies come seeking records. They also minimize potential privilege waivers.
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.
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.
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
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