Ethics Opinion 14
EC 2-31, EC 2-32, DR 2-110(H)(2); Canon 4, EC 4-1, EC 4-4, EC 4-5, DR 4-101; EC 5-12, EC 5-15, EC 5-17, EC 5-18; EC 7-2—Duty Attorney Owes to Former Client Whom Attorney Represented in Connection With Civil Investigation by Government Regulatory Agency—Attorney’s File on Former Client Subpoenaed by Grand Jury
We have been asked several questions concerning, in general, the duties an attorney owes a former client whom the attorney represented individually in connection with a civil investigation by a government regulatory agency when the attorney’s files relating to the former client are subpoenaed by a grand jury. The former client was represented jointly with a corporate client that subsequently waived its attorney-client privileges. More specifically, we have been asked the following:
1. Whether and when an attorney who is served with a grand jury subpoena duces tecum to produce documents relating in whole or in part, or possibly relating in whole or in part, to a former client is required to notify that former client of the receipt of the subpoena.
2. Whether the attorney is required to provide the former client’s successor attorneys with a copy of the subpoena in question and whether he is required to do so when the attorney believes that only portions of the subpoena call for documents relating solely to his representation of the former client and that other portions of the subpoena relate either to his representation of the former client jointly with other clients, or relate solely to other, unrelated clients.
3. Whether the attorney should, prior to production of the documents in compliance with the subpoena, provide the former client’s successor attorneys with access to, or copies of, the documents under subpoena that relate either solely to the former client or jointly to the former client and other clients so that the successor attorneys can present to the court claims of privilege or other objections prior to production, or whether the attorney, as the recipient of the subpoena, is the only one entitled to determine, prior to production, which documents are privileged or arguably so.
4. Whether the attorney may assert a work-product privilege against his former client as to internal attorney work-product documents in his files relating either solely to the client or jointly to him and other clients produced during the lawyer-client relationship, particularly when such documents are requested by the former client to assist him in preparing for a grand jury investigation or other legal proceeding, or whether the attorney may do as he wishes with such documents. Also, we are asked whether the attorney has a duty to assert a work-product privilege on behalf of his former client when work-product documents relating to representation of him are subpoenaed, and whether the attorney may assert the privilege against his client as to those documents he does in fact disclose to third parties or proposes to disclose.
We note at the outset of this opinion that in one case that has come to our attention a trial court in another jurisdiction ruled upon the professional responsibilities of members of the D.C. Bar in circumstances similar to those presented in the questions posed to us. This trial court opinion diverges from ours in some respects. The existence of this out-of-state opinion, far from foreclosing us from setting forth in this opinion guidelines for the future conduct of members of the D.C. Bar, emphasizes the desirability of our doing so. The questions presented are important and are not squarely answered by the terms of the Code of Professional Responsibility. In issuing the opinion, we do not mean to pass judgment on any actions inconsistent with this opinion that may have been taken by members of the bar before this opinion was published.
The Code of Professional Responsibility emphasizes that a lawyer should preserve the confidences and secrets of his clients. Canon 4; EC 4-1; DR 4-101; and that he should “not use information acquired in the course of representation to the disadvantage of the client,” EC 4-5; DR 4-1O1(B)(2). Not only must the attorney preserve those client’s “confidences” that are protected by the attorney-client privilege (which relates to communications from the client to the attorney) but also “secrets,” which the Code says include “information gained in the professional relationship . . . the disclosure of which would be embarrassing or would be likely to be detrimental to the client.” DR 4-1O1(A). Moreover, this ethical obligation to guard the confidences and secrets of a client, unlike the evidentiary attorney-client privilege, “exists without regard to the nature or source of information or the fact that others share the knowledge.” EC 4-4.
EC 4-6 provides that “the obligation of a lawyer to preserve the confidences and secrets of his client continues after the termination of his employment.” A lawyer’s continuing obligation to a client whose representation he once undertook is underscored by those provisions of the Code that deal with the necessity of taking steps to avoid prejudicing a client as a result of termination of the representation. EC 2-31 provides generally that lawyers who undertake representation should complete the work involved and, more specifically, trial counsel for a convicted defendant should represent him through the appeal (unless new counsel is substituted). EC 2-32 provides further than when an attorney declines to proceed with a case on appeal he should endeavor “to minimize the possible adverse effect on the rights of his client,” and DR 2-110(H)(2) provides: “In any event, a lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client. . . .”
EC 2-32 provides specifically that an attorney not continuing a client’s representation should, inter alia, deliver to the client all papers and property to which the client is entitled, cooperate with counsel subsequently employed and otherwise attempt to minimize the possibility of harm. See also ABA Informal Opinion No. 724, Dec. 27, 1963.
A lawyer is excused from his ethical duty to preserve a client or former client’s confidences and secrets when he is required to disclose them by law or court order. DR 4-101(C)(2). The question before us is how the attorney discharges his ethical responsibilities when documents come into his possession or are obtained or produced by the attorney during the course of his representation of a client and those documents are subsequently subpoenaed by a grand jury.
It is our opinion that, when documents are subpoenaed or an effort is otherwise made to compel their disclosure, it is the lawyer’s ethical duty to a former client to assert on the former client’s behalf every objection or claim of privilege available to him when to fail to do so might be prejudicial to the client. This rule is settled in the case of an existing attorney-client relationship. See Schwimmer v. United States, 232 F.2d 855, 863 (8th Cir.), cert. denied, 352 U.S. 833 (1956), for a statement of an attorney’s duty to assert any applicable attorney-client privilege. Accord EC 4-4, which provides: “A lawyer owes an obligation to advise the client of the attorney-client privilege and timely to assert the privilege unless it is waived by the client.” For reasons stated above, the rule should not be different in the case of an attorney-client relationship that has terminated.
We think, then, in answer to the first question posed, that in order to “minimize the possibility of harm” to a former client, EC 2-32, an attorney should promptly notify his former client when he receives a subpoena asking for documents that came into his possession during the course of the representation of that former client or documents that affect or may affect that former client, irrespective of whether the attorney knows at the time of the receipt of the subpoena that he still has in his possession any specific documents arising during the attorney-client relationship. If there is any possibility whatever that the attorney has in his possession any subpoenaed document affecting the interest of his former client, which came into his possession from any source whatever during the course of that representation, he should immediately, upon receipt of the subpoena, notify the former client.
Our answer to the second question is that the lawyer need not provide the former client’s successor attorneys with a copy of the subpoena but, if the lawyer believes that the disclosure of extraneous portions of the subpoena would risk prejudice to other clients, only with a copy of those portions of the subpoena that the lawyer believes relate to the former representation. In fulfillment of his obligation to his former client the lawyer is not obliged to risk unwarranted disclosures of confidences or secrets of other clients and indeed is ethically forbidden to do so.
Our answer to the third question is that the lawyer should provide to the former client or to the attorneys now representing the former client copies of or access to all documents called for by the subpoena that relate either solely to the former client or jointly to the former client and other clients so that the successor attorneys can determine or assist in determining as to which document claims of privilege should be made.
The attorney should zealously guard against the erroneous release, by production in court in response to the subpoena, of any documents that represent confidences or secrets obtained by the attorney in the course of his representation of the former client.
The attorney should resolve any disagreements with his former client as to the validity of any claims of privilege in favor of the client or should let the former client have an opportunity prior to production to assert any objection or claim of privilege that he, or successor attorneys acting on his behalf, think applicable. As a practical matter, this means that the attorney should provide the client, or his successor attorneys, prior to production, with access to or copies of the documents at issue so that they can properly frame and present to the court their objections or claims of privilege.
EC 5-12 is apposite here. That provision requires that, when co-counsel are unable to agree on a matter vital to the representation of their client, “their disagreement be submitted by them jointly to their client for his resolution, and the decision of the client shall control the action to be taken.” We believe that this precept applies also to those situations involving a client’s present and former counsel.
We recognize, as does the Code of Professional Responsibility, that lawyers may disagree on a matter vital to the representation of their client. We also note that “The bounds of the law in a given case are often difficult to ascertain.” EC 7-2. In particular, attorneys can honestly differ among themselves over such issues as whether a grand jury subpoena is valid, or whether it calls for a particular document in question, whether a particular document is a privileged communication between the attorney and the client, or is otherwise privileged, or whether a particular document belongs to the client and contains self-incriminatory information that would form the basis for a claim of Fifth Amendment privilege.
Thus, where there are disagreements between present and former counsel as to the existence of any objections or privileges, with respect to subpoenaed documents that came into the possession of the former counsel from any source during the course of representing the client, the client should determine which attorney—his former attorney or his present attorney or both—should review the subpoena and documents at issue and present objections to the court, together with the documents in camera if requested by the court, prior to their production in compliance with the subpoena. The attorney should not disclose any document as to which the client, or his successor attorneys acting on his behalf, assert an objection or privilege but as to which he believes the objection invalid or the privilege unavailable. Rather, the attorney should first present the document to the court and inform the court of the disagreement. At the same time, the client or his new attorneys can also present to the court their arguments for nondisclosure. Having thus satisfied his ethical duties towards his former client, the attorney is then free to comply with whatever directive the trial court gives.1
This is the course to be followed even when the attorney believes the client’s assertion of privilege to be a frivolous one. An attorney may withdraw from representation of a client if he believes the client’s claims to be frivolous and the client persists in asserting them, but he should not foreclose his client’s opportunity to present his claims. See Anders v. California, 386 U.S. 738 (1967); McCartney v. United States, 343 F.2d 471, 472 (9th Cir. 1975).
We turn now to the questions relating to documents in the attorney’s files considered by the attorney or his former client to be the attorney’s work product produced by him for the purpose of representing the client. Such work product may well be considered the property of the attorney, but we need not concern ourselves here with that issue. We believe that the attorney’s ethical duty to preserve his client’s confidences and secrets discussed above extends also to the attorney’s work product produced during the course of the representation.2 Certainly, if the attorney, for any reason, has breached this responsibility and made such work product available to third parties, under no circumstances should he refuse to make it available also to the former client for whose benefit, or at least joint benefit, it was produced. Moreover, we believe that there is no requirement in law or in ethics that an attorney not disclose such work product to his former client in any event. Indeed, under his general duty to cooperate with a former client’s new counsel discussed above, and to do all that he can to minimize the possibility of harm arising as the result of his withdrawal from representation of that client in succeeding or related litigation, we think that he should turn over to his former client, or the client’s successor attorneys, that portion of his work product which is necessary to the adequate representation of the client.
As with any privilege existing either wholly or partially for the benefit of clients, it is our opinion that an attorney has an ethical duty to assert the work-product privilege whenever applicable when documents in the attorney’s files are subpoenaed. Even though the attorney work-product privilege is technically considered the attorney’s to assert in a court rather than the client’s, the underlying purpose of the privilege is, at least partially, to protect and further the effective representation of clients. See Hickman v. Taylor, 329 U.S. 495, 514–15 (1947) (Jackson, J., concurring). Therefore, the attorney should not divulge such work product when to do so would work to the disadvantage of a client.
None of our answers is affected by the fact that the representation of the client in question was a joint representation, along with a corporate client that subsequently waived its attorney-client privilege. That waiver frees the lawyer to produce documents that relate solely to the corporate client so far as any claims to confidentiality by it art concerned, but it does not free him to disclose documents that relate in any way to the former individual client. In this regard, note that, when an attorney undertakes to represent a corporate officer in his individual capacity and also to represent the corporation, documents obtained or produced during such joint representation frequently, if not invariably, intertwine the interests of the joint clients. Such joint representation is fraught with potential conflict and a lawyer should represent a corporate official in his individual capacity and also represent the corporation only if the lawyer is convinced that differing interests, or potentially differing interests, are not presented. EC 5-15; EC 5-17; and EC 5-18.
- In the case of an existing attorney-client relationship, if an attorney disagrees with an existing client as to the validity of a particular objection or privilege, or whether failure to assert it entails potential prejudicial harm to the client, he should not prejudice his client or render the issue moot by himself producing the documents called for but rather should, prior to production, present the impasse to the appropriate court for adjudication, and give his client an opportunity to present his claims to that court also. See EC 7-7. By first allowing the client to assert whatever arguments against disclosure he thinks appropriate, the attorney best discharges his ethical duties to the client. The public interest is also protected since the court can review the documents at issue in camera and decide the validity of any claimed objections or privileges. (Of course the attorney may not suppress the fact that such documents are in his possession. EC 7-27.)
- In this connection, see EC 4-6, providing that, when an attorney retires from practice, his work product should either be destroyed or delivered to another attorney and that the client’s option as to method of disposition should be a dominant consideration.