Hotline Questions: Client Confidentiality and Attorney Subpoenas
Post on May 1st, 2020
Hotline Questions is a continuing series that shares general answers to questions frequently posed to our OBLIC Loss Prevention Hotline.
What client information remains confidential when the representation ends?
The question often arises when the lawyer withdraws from, or otherwise concludes, representation and is asked to produce documents from the client file or provide testimony about the representation.
Several rules of the Ohio Rules of Professional Conduct govern the lawyer’s disclosure of information arising out of the lawyer’s representation of the client. As noted in Comment  of Rule 1.6, “[a] fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.” (Emphasis added).
Different rules apply depending on the status of the client-lawyer relationship:
Rule 1.6 Confidentiality of Information governs the disclosure by the lawyer of information relating to the representation during the lawyer’s representation of the client.
Rules 1.8 Conflict of Interest: Current Clients: Specific Rules at (b) and 1.9 Duties to Former Clients at (c)(1) address the lawyer’s duties regarding the use of information relating to the lawyer’s prior representation of a former client to the disadvantage of clients and former clients.
Rule 1.9 Duties to Former Clients at (c)(2) provides for the lawyer’s duty not to reveal information relating to the lawyer’s representation of a former client.
Rule 1.16 Declining or Terminating Representation at (d) requires the lawyer promptly deliver client papers and property to the client.
Rule 1.18 Duties to Prospective Client controls the lawyer’s duties for information provided to the lawyer by a prospective client.
Depending on the circumstances and timely advance notice, your OBLIC policy will often provide defense coverage to respond to subpoenas seeking your client’s file or testimony about the representation – a coverage feature we urge insureds to utilize as such will often help mitigate or eliminate possible claims.
As always, if you have any questions about this or any other practice issue, please do not hesitate to contact me.
Gretchen Koehler Mote, Esq.
Director of Loss Prevention
Ohio Bar Liability Insurance Company