Ohio Board Advisory Opinion Op. 23-04

OCR transcription; preserved printed pages are authoritative

e Ohio Board of Professional Conduct

OPINION 2023-04
Issued June 9, 2023

Compliance with Subpoena Duces Tecum for Former Client’s File

SYLLABUS: A lawyer in receipt of a subpoena duces tecum for a former client’s file must
promptly notify the former client of the request and seek the client’s informed consent to

the disclosure of client information contained in the file.

If the former client gives consent to comply with a subpoena duces tecum for the client’s
file, the lawyer’s disclosure of the client’s information should be made only to the extent
that the lawyer believes is reasonably necessary to comply with the subpoena. If the
former client chooses to challenge a subpoena, the lawyer must assert all reasonable
claims to limit the disclosure of client information related to the former representation,
including, but not limited to, the serving of written objections on the issuing party, the

filing of a motion to quash, and the appeal of an adverse court ruling.

If the former client cannot be timely located, the lawyer must assert all reasonable claims
to limit the disclosure of client information related to the former representation in
response to the subpoena, including, but not limited to, serving objections on the issuing

party and filing a motion to quash.

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct
in response to a prospective or hypothetical question regarding the application of
ethics rules applicable to Ohio judges and lawyers. The Ohio Board of Professional
Conduct is solely responsible for the content of this advisory opinion, and the advice
contained in this opinion does not reflect and should not be construed as reflecting the
opinion of the Supreme Court of Ohio. Questions regarding this advisory opinion
should be directed to the staff of the Ohio Board of Professional Conduct.

€> Ohio Board ot Professional Conduct

65 SOUTH FRONT STREET, 57! FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.bpc.ohio.gov

Hon. D. CHRIS COOK RICHARD A. DOVE
CHAIR DIRECTOR
PATRICK M. MCLAUGHLIN D. ALLAN ASBURY
VICE- CHAIR SENIOR COUNSEL
KRISTI R. MCANAUL
COUNSEL

OPINION 2023-04
Issued June 9, 2023

Compliance with Subpoena Duces Tecum for Former Client’s File

SYLLABUS: A lawyer in receipt of a subpoena duces tecum for a former client's file must
promptly notify the former client of the request and seek the client’s informed consent to

the disclosure of client information contained in the file.

If the former client gives consent to comply with a subpoena duces tecum for the client’s
file, the lawyer’s disclosure of the client’s information should be made only to the extent
that the lawyer believes is reasonably necessary to comply with the subpoena. If the
former client chooses to challenge a subpoena, the lawyer must assert all reasonable
claims to limit the disclosure of client information related to the former representation,
including, but not limited to, the serving of written objections on the issuing party, the

filing of a motion to quash, and the appeal of an adverse court ruling.

If the former client cannot be timely located, the lawyer must assert all reasonable claims
to limit the disclosure of client information related to the former representation in
response to the subpoena, including, but not limited to, serving objections on the issuing

party and filing a motion to quash.
QUESTION PRESENTED:

What are a lawyer's ethical duties when served with a subpoena duces tecum to

produce a former client’s file in its entirety?

APPLICABLE RULES: Prof.Cond.R. 1.0, 1.2, 1.4, 1.5, 1.6, 1.9

Op. 2023-04 2

OPINION:

The requesting lawyer has received a subpoena duces tecum from a prosecuting
attorney seeking the production of the file of a former client. The former client is not a
party to the matter in question. The requesting lawyer seeks guidance about his ethical

duties and obligations to the former client in responding to the subpoena.
Lawyer's Obligations Under Prof.Cond.R. 1.6

A lawyer has a professional duty to protect the confidentiality of client
information. Prof.Cond.R. 1.6. To the extent that a lawyer is in possession of a former
client’s file after termination of representation, the lawyer must continue to comply with
the obligation to not reveal information relating to the representation of the former client
including information protected by the attorney-client privilege. Prof.Cond.R. 1.6;
cmt.[20]. A lawyer cannot reveal any information relating to the representation of a
former client unless it is impliedly authorized, the former client gives informed consent,

or an exception under Prof.Cond.R. 1.6 permits the disclosure. Prof.Cond.R. 1.6(a),(b),(d).
Notice and Communication with Former Client

Upon receipt of a subpoena duces tecum for a former client’s file, a lawyer should
promptly provide notice of the fact to the former client before the deadline to respond to
the subpoena has passed. If the former client is available, the lawyer must “inform the
client of any decision or circumstance with respect to which the client’s informed consent
is required” which would include whether the client wishes to comply with or challenge
the subpoena. Prof.Cond.R. 1.4(a)(1).

Obtaining the former client’s informed consent requires the lawyer to give the
client adequate information and explain the matter to the extent that the client may make
an informed decision. Prof.Cond.R. 1.4(b). The consultation with the former client should
include an explanation of the scope and application of Prof.Cond.R. 1.6, the attorney-
client privilege, the work-product doctrine, and any other protections or immunities that
may serve as the basis for challenging the subpoena. A lawyer’s explanation to the former
client should also include the material risks and any alternatives to the disclosure of the
client’s confidential information. See Prof.Cond.R. 1.0(f) (definition of informed consent.)

Although not required by Prof. Cond. R. 1.6(a), the Board believes a prudent lawyer

Op. 2023-04 3

should obtain written documentation of the client’s consent to avoid any dispute about

the nature and scope of the authorization.!
Compliance with Subpoena or Court Order

If the former client gives informed consent to the lawyer to comply with a
subpoena duces tecum for the client’s file, the lawyer’s disclosure of the client’s
information should be made only “to the extent that the lawyer believes is reasonably
necessary in order to comply” with the subpoena. Prof.Cond.R. 1.6(b), cmt.[16]; ABA
Formal Opinion 473 (2016).

If the former client decides to challenge a subpoena, the Board recommends that
the lawyer take reasonable steps to object to the disclosure of client information in the
former client’s file through written objections served on the issuing party or by filing a
motion to quash. If the court grants the issuing party’s subsequent motion to compel or
overrules the former client’s motion to quash and orders the disclosure of the client file,
the lawyer may comply with the court order, unless the lawyer’s client decides to appeal.
Prof.Cond.R. 1.6(b)(6).

Opportunity for Appeal

In the event of an adverse ruling or order by a court directing the disclosure of the
former client’s file, a lawyer should discuss the grounds for an appeal with the former
client. Prof.Cond.R. 1.6, cmt.[15]. If an immediate right of appeal is available, and the
client wishes to pursue it, the Board recommends that the lawyer clearly identify the
scope and terms of the engagement, including any fee to be paid, in order to comply with
Prof.Cond.R. 1.2 and 1.5. Whether and under what circumstances a lawyer may appeal
a court’s adverse ruling concerning compliance with a subpoena of a nonparty is a

question of law that the Board is without authority to address.

If the former client decides to forego an appeal and comply with the court’s order,

the Board advises the lawyer to consider additional measures including, but not limited

lin counseling a recalcitrant client, a lawyer must be mindful of Prof. Cond. R. 3.1, which prohibits the
assertion of a position with no basis in law and fact, is frivolous, or is not a good faith argument for an
extension, modification, or reversal of existing law; nor may a lawyer unlawfully obstruct another party’s
access to evidence, regardless of a client’s instruction to do so. See Prof. Cond. R. 3.4(a).

Op. 2023-04 4

to, seeking appropriate protective orders, requesting an in-camera review, or other
arrangements so that access to the client’s information is limited to the court or persons

the court deems entitled to the information. Prof.Cond.R. 1.6, cmt. [16].
When the Former Client Cannot Be Timely Located

If the former client cannot be timely located, the lawyer should use reasonable
efforts to find the former client. If the lawyer’s continuing efforts to locate the client are
unsuccessful, the Board advises the lawyer to assert all reasonable claims on behalf of the
unavailable former client, through written objections served on the issuing party or the
filing a motion to quash, on the basis that the information sought by the subpoena is
protected from disclosure by privilege or other grounds. In the court filing, the lawyer
should notify the court that the lawyer has been unable to locate the client and reference
any attempts undertaken to find the client. In the event of an adverse ruling or order by
the court, the lawyer is not required to undertake an appeal on behalf of the former and
absent client. ABA Formal Opinion 473 (2016).

Fees for Legal Services

In most situations, the request for a former client’s file will fall outside the scope
of the lawyer's prior representation. When giving the former client notice of the subpoena
duces tecum, the lawyer should discuss any fee arrangement for providing the legal
services necessary to respond to the subpoena and enter into a new agreement that
addresses any fees and expenses and the scope of representation. As a best practice, a
lawyer may consider including in all client fee agreements a provision that anticipates
payment for the lawyer’s services and any costs associated with a demand for client
information protected by Prof.Cond.R. 1.6 that is received after termination of the
representation. See ABA Formal Opinion 473 (2016).