So, Wait, *I* Can Be Subpoenaed?

When I last tried to write about breaking news, it was about this crowdsourced/crypto/litigation funding/securities/whatever it is, and because blockchain is that one thing I will probably never understand well enough to write about, I gave up. That entry remains in drafts and will probably die there.

But anyway, today’s breaking news is not that.  We learned that the House select committee investigating the January 6, 2021 attacks on the Capitol issued subpoenas for Rudy Giuliani, Jenna Ellis, Sidney Powell, and Boris Epshteyn. All four are attorneys who were involved in some way in the January 6 insurrection or the litigation seeking to overturn the election results.

While predictions as to how that will play out are beyond the scope of this blog, I do occasionally get asked whether attorneys can be subpoenaed to testify about, or produce documents related to representation of, former or current clients.

The answer is, of course, yes; anyone can be subpoenaed. But, how a lawyer can respond to the subpoena depends on several factors. The ABA has a good formal opinion on this subject.

One important caveat: Most interpretations of Rule 1.6, governing confidentiality, do not interpret an exception allowing lawyer to reveal client information to comply with a “court order” to mean that the lawyer can respond to a subpoena without further inquiry. “Court order” means a tribunal order in this instance.

So, first, we need to look at whether the client consents. This may be the path of least resistance. Lawyers should first approach the client, if possible, and discuss the matter. For former clients, lawyers need to make reasonable efforts but not exhaust every effort to find the client and discuss pros, cons, and reasonably available alternatives (including, in my opinion, whether a challenge is likely to be successful). If the client provides informed consent, then the lawyer may provide the information to the extent necessary to comply with the subpoena.

If the client (current or former) does not consent, then the lawyer needs to challenge the demand on any reasonable grounds (such as moving to quash the subpoena in court). If, after making the challenge, the court rules against the lawyer and their client, the lawyer should consult with the client about whether it is reasonable to appeal. It is acceptable to charge and negotiate fees when responding to or challenging a subpoena is beyond the scope of a current retention agreement.

If the client is unavailable for consultation (because they won’t take phone calls, have disappeared, or any other reason) then the lawyer should assert all reasonable objections and make reasonable motions; if the lawyer is ordered to comply, they may produce information to the extent necessary to comply, without appealing. (The ABA opinion draws a distinction here, because appealing an order when the client is not available for consultation is overly burdensome for the lawyer.)

One factor that by and large does not matter is the specific nature of what has been subpoenaed. So long as it relates to representation, the material is presumptively confidential under Rule 1.6, even if it isn’t attorney-client communication or work product (which would be privileged). Say it with me: The rule of professional conduct is broader than the evidentiary privilege.

This does mean that lawyers closely following this guidance may find themselves in the awkward position of having to spend their own resources to file a motion to quash they know will be denied.  But, it’s better that than running into ethical trouble.