A commission subpoenaed my client's billing records. Must I turn them over without the client's consent, and can I be forced to testify about the representation?

Plain-English summary

The inquiring attorney was subpoenaed to appear before a commission, which requested billing records for legal services the attorney provided regarding a specific client. The attorney asked whether the attorney must release the requested information without the client's consent, whether the subpoena should be honored, and what limitations, if any, apply to the attorney's testimony concerning the representation.

The panel said Rule 1.6(a) and its comments provide guidance. Rule 1.6(a) provides that a lawyer shall not reveal information relating to the representation of a client unless the client consents after consultation, except for impliedly authorized disclosures. The panel's comment on disclosures otherwise required or authorized explains that the attorney-client privilege is differently defined in various jurisdictions; if a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable, and the lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client. The comment also notes that the Rules in various circumstances permit or require disclosure (citing Rules 2.2, 2.3, 3.3, and 4.1), and that a lawyer may be obligated or permitted by other law to give information about a client.

While the panel declined to comment on whether an actual attorney-client privilege exists in this matter, it stated that Rule 1.6 requires an attorney to invoke the privilege whenever it becomes appropriate to the situation, and that the attorney must comply with final orders from a court regarding information about a client. The panel declined to render an opinion on whether the attorney should honor the subpoena, because that calls for a legal opinion rather than an ethical opinion.

In practice

Under this opinion, a subpoenaed lawyer's ethical obligation under Rule 1.6 is to invoke the client's privilege whenever it is applicable, absent the client's consent or waiver, and to comply with any final court order requiring disclosure. The opinion expressly does not decide whether a privilege exists on these facts or whether the subpoena must be honored, treating both as legal rather than ethical questions.

Common questions

Q: Must I hand over a client's billing records just because a commission subpoenaed them?

A: Per the opinion, absent the client's consent Rule 1.6(a) bars revealing information relating to the representation, and the lawyer must invoke the privilege when it is applicable; but the lawyer must comply with a final court order requiring disclosure.

Q: Will the panel tell me whether the privilege applies or whether to obey the subpoena?

A: Per the opinion, no; the panel declined to comment on whether a privilege exists and declined to opine on whether to honor the subpoena because that calls for a legal, not an ethical, opinion.

Q: What happens if a court issues a final order to disclose?

A: Per the opinion, the attorney must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

Background and rules framework

The opinion applies Rhode Island Rule 1.6 (confidentiality of information), corresponding to Model Rule 1.6. The panel read Rule 1.6(a) as prohibiting disclosure of information relating to the representation without client consent and read the comment as requiring the lawyer, when called as a witness, to invoke the privilege where applicable while complying with final court orders compelling disclosure.

Citations and references

Rules of Professional Conduct:

• MR 1.6 (confidentiality of information)
• RI RPC 1.6(a); RI RPC 2.2, 2.3, 3.3, 4.1 (cited in the comment as provisions permitting or requiring disclosure)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-28: May Not Help the FBI Prosecute a Former Client (Confidentiality, Rule 1.6)
• RI EAP Op. 92-27: Collecting Against a Former Client Under Rule 1.9

Currency note

This opinion was issued in 1992 (Opinion 92-50), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.6 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.6 (confidentiality of information). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-50.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion #92-50, Request #285
Issued August 12, 1992

An attorney seeks Panel advice regarding the following circumstances. The inquiring attorney was subpoenaed to appear before a commission. The commission requested billing records for legal services provided by the attorney regarding a specific client. The inquiring attorney asks whether the attorney must release the requested information, without the consent of the client; whether the subpoena should be honored and what if any are the limitations regarding the attorney's testimony concerning the representation of the client.

The Panel believes that Rule 1.6(a) and the comments thereto provide guidance to this inquiry. The Rule states that:

(a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation . . .

The Panel comments to Rule 1.6 entitled "Disclosures Otherwise Required or Authorized" state that:

The attorney-client privilege is differently defined in various jurisdictions. If a lawyer is called as a witness to give testimony concerning a client, absent waiver by the client, paragraph (a) requires the lawyer to invoke the privilege when it is applicable. The lawyer must comply with the final orders of a court or other tribunal of competent jurisdiction requiring the lawyer to give information about the client.

The Rules of Professional Conduct in various circumstances permit or require a lawyer to disclose information relating to the representation. See Rules 2.2, 2.3, 3.3 and 4.1. In addition to these provisions, a lawyer may be obligated or permitted by other provisions of law to give information about a client.

While the Panel declines to comment on whether an actual attorney-client privilege exists in this matter, it does believe that Rule 1.6 requires an attorney to invoke the privilege whenever it becomes appropriate to the situation. The attorney must keep in mind however that an attorney must comply with final orders from a court regarding information about a client. The Panel declines to render an opinion regarding whether the attorney should honor the subpoena because it calls for a legal opinion rather than an ethical opinion.