I got a deposition notice and a subpoena duces tecum for a former client's documents that I think are privileged, and the client won't consent to disclosure. Can I refuse to produce them?

Plain-English summary

The inquiring attorney received a notice of deposition and a subpoena duces tecum seeking information relating to the attorney's representation of a former client who was a party to a pending lawsuit. The attorney believed the documents were protected by the attorney-client privilege and the work-product doctrine, and counsel for the former client had advised that the client did not consent to disclosure. The attorney did not intend to produce the documents at the deposition and asked the panel for advice on that course.

The panel concluded that the attorney had a confidentiality obligation under Rule 1.6 that did not permit disclosing the information sought. The attorney had a duty to invoke the attorney-client privilege and the work-product doctrine as to documents and information that, in the attorney's professional judgment, were protected, and to object to disclosure in the appropriate motions and at the deposition on those grounds and on the ground of the ethical obligation of confidentiality. The panel added, however, that the attorney had to comply with the final orders of a court requiring production of the documents or testimony about the former client, citing the comment to Rule 1.6 and ABA Formal Opinion 94-385.

Currency note

This opinion was issued in January 1998, 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. 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Does the confidentiality duty survive after the representation ends?

A: Yes. The opinion applied Rule 1.6 to a former client's information and concluded the lawyer could not disclose it without the former client's consent.

Q: What must a lawyer do when subpoenaed for a client's privileged records?

A: The opinion required the lawyer to invoke the attorney-client privilege and the work-product doctrine for the protected material and to object to disclosure in the appropriate motions and at the deposition.

Q: Can the lawyer simply refuse to produce the documents?

A: No. The opinion stated the lawyer must comply with the final orders of a court requiring production or testimony about the client, even while asserting the privilege and confidentiality objections.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.6 (Model Rule 1.6) as originally adopted. Rule 1.6(a) barred a lawyer from revealing information relating to the representation of a client absent the client's consent after consultation, except for impliedly authorized disclosures and the exceptions in paragraph (b). The panel relied on the official comments, which require a lawyer called as a witness to invoke the privilege when applicable but to comply with a tribunal's final order, and cited ABA Formal Opinion 94-385 for the professional responsibility to seek to limit a subpoena or court order on any legitimate ground.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.6 / RI RPC 1.6(a) (confidentiality of information)

Other opinions cited:

• ABA Comm. on Ethics and Professional Responsibility, Formal Op. 94-385 (1994): lawyer's responsibility to seek to limit a subpoena or court order to protect Rule 1.6 information

See also

• RI EAP Op. 99-02: Publishing settlement details without client consent
• RI EAP Op. 98-12: Reporting a client threat against the lawyer

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%2098-02.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                           RHODE ISLAND SUPREME COURT
                              ETHICS ADVISORY PANEL
                            Opinion No. 98-02, Request No. 737
                                 Issued January 28, 1998

Facts:

    The inquiring attorney has received a notice of deposition and a subpoena duces tecum

that seeks information from him/her relating to the representation of a former client who is a
party to a pending lawsuit. The inquiring attorney believes that the documents that are being
sought are protected by the attorney-client privilege and by the work product doctrine. An attor-
ney who is representing the inquiring attorney's former client in the pending action has advised
the inquiring attorney that the client does not consent to disclosure of the information.

Issue Presented:

    The inquiring attorney does not intend to produce the documents at the deposition and

seeks the Panel's advice on this course of conduct.

Opinion:

    The inquiring attorney has an obligation of confidentiality under Rule 1.6 of the Rules of

Professional Conduct which does not permit him/her to disclose the information that is being
sought. Pursuant to Rule 1.6, the inquiring attorney has a duty to invoke the attorney-client
privilege and the work product doctrine with respect to documents and information which, in
his/her professional judgment, are protected by the privilege or the doctrine. The inquiring attor-
ney must comply with the final orders of a court requiring him/her to give information about the
client.
Reasoning:

     Rule 1.6(a) states:

     Rule 1.6. Confidentiality of Information. -

      (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, and
      except as stated in paragraph (b).

    The information requested relates to the representation of the former client and therefore,

pursuant to his/her obligation of confidentiality, the inquiring attorney may not disclose it with-
out the client's consent. The official comments to Rule 1.6 further provide:
Final 98-02
Page 2

           . . . . If a lawyer is called as a witness to give testimony concerning
           a client, absent waiver by the client, paragraph (a) requires a law-
           yer to invoke the privilege when it is applicable. The lawyer must
           comply with the final orders of a court or other tribunal of compe-
           tent jurisdiction requiring the lawyer to give information about the
           client.

    The Panel concludes that the inquiring attorney has an obligation to keep the information

sought confidential, and to object to its disclosure in the appropriate motions and/or at the depo-
sition on the grounds of the attorney-client privilege, the work product doctrine, and his/her ethi-
cal obligation of confidentiality. See ABA Comm. on Ethics and Professional Responsibility,
Formal Op. 94-385 (1994) (lawyer has professional responsibility to seek to limit subpoena or
court order on any legitimate ground, such as attorney-client privilege, work product immunity,
burden or relevance, to protect information to which obligations under Rule 1.6 apply.) The in-
quiring attorney must comply, however, with the final orders of a court requiring him/her to pro-
duce the documents sought or to give information about the former client. See Comment to Rule
1.6.