The American Bar Association Standing Committee on Ethics and Professional Responsibility has issued Formal Opinion 473 that extends the advice related to when an attorney may disclose confidential client information.
The formal opinion is intended to update Formal Opinion 94-385, issued 21 years ago, and subsequent Ethics 2000 amendments.
Since then, questions have arisen regarding how a lawyer should respond to subpoenas, demands or other compulsory process for client information and documents, particularly when the client is not available for consultation or when the client and attorney disagree on how to respond.
“A lawyer receiving a subpoena or other compulsory process for information or documents relating to the representation of a client has several obligations,” the opinion said, before spelling out suggested paths for an attorney to follow depending on the situation.
“If the client is available, the lawyer must consult the client,” the opinion states. “If instructed by the client or if the client is unavailable, the lawyer must assert all reasonable claims against disclosure and seek to limit the subpoena or other demand on any reasonable ground.
If ordered to disclose confidential or privileged information and the client is available, the opinion said, “a lawyer must consult with the client about whether to produce the information or to appeal. If the client and the lawyer disagree about how to respond to the initial demand or to an order requiring disclosure, the lawyer should consider withdrawing pursuant to Model Rule 1.16.”
“If disclosure is ordered and the client is unavailable for consultation, the lawyer is not ethically required to appeal,” the opinion said. “When disclosing documents and information — whether in response to an initial demand or to a court order and whether or not the client is available — the lawyer may reveal information only to the extent reasonably necessary. The
lawyer should seek appropriate protective orders or other protective arrangements so that access to the information is limited to the tribunal ordering its disclosure and to persons having a need to know.”
The ABA Standing Committee on Ethics and Professional Responsibility periodically issues ethics opinions to guide lawyers, courts and the public in interpreting and applying ABA model ethics rules to specific issues of legal practice, client-lawyer relationships and judicial behavior.
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