Ethics Opinion 381
Responding to Third-Party Subpoena
Introduction
A lawyer’s representation of a prospective client in responding to a third-party subpoena that seeks documents, tangible things, property, or testimony1 (“Information”) about a lawyer’s existing client does not create a conflict of interest unless the lawyer’s representation of either the prospective client or the client will be, or likely will be, adversely affected.2 A lawyer’s representation of a prospective client in responding to a third-party subpoena that seeks Information about a lawyer’s former client does not create a conflict of interest unless the subpoena matter is the same or substantially related to the lawyer’s former representation and the interests of the prospective client and former client are adverse.
Applicable Rules
- Rule 1.0 (Terminology)
- Rule 1.1 (Competence)
- Rule 1.3 (Diligence and Zeal)
- Rule 1.6 (Confidentiality of Information)
- Rule 1.7 (Conflict of Interest: General Rule)
- Rule 1.9 (Conflict of Interest: Former Client)
- Rule 1.10 (Imputed Disqualification: General Rule)
Discussion
In this opinion, the Committee considers whether a lawyer’s representation of a client in responding to a third-party subpoena for Information that identifies specific parties by name (the “Prospective Client”) creates a conflict of interest if the lawyer also represents or represented one of the named persons (the “Other Client”) in unrelated matters.3
1. Current Client Conflict of Interest
Typically, a lawyer may represent a Prospective Client, even if the Information sought relates to another client of the lawyer, without triggering a conflict under Rule 1.7(b).
Pursuant to D.C. Rule 1.7(b), a lawyer shall not represent a client in a matter if:
(1) That matter involves a specific party or parties and a position to be taken by that client is adverse to a position taken or to be taken by another client in the same matter even though that client is unrepresented or represented by a different lawyer;
(2) Such representation will be or is likely to be adversely affected by representation of another client;
(3) Representation of another client will be or is likely to be adversely affected by such representation; [or]
(4) The lawyer’s professional judgment on behalf of the client will be or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or personal interests.4
- Assessing Conflicts at the Outset of the Representation
A lawyer is required to assess conflicts on each proposed engagement at the outset of the representation.5 Such assessment includes undertaking reasonable diligence concerning the subpoena. In assessing possible conflicts before undertaking the representation of the Prospective Client, a lawyer should consider the particulars of the proceeding out of which the subpoena issued and the information contained in the subpoena itself, including the time period, the scope of information sought, and the names of persons identified and their connection to the information sought. Whether additional diligence would be required is a question of fact and varies by the circumstances. For example, under certain circumstances, it might be necessary for the lawyer to review publicly available information or consult with the Other Client as part of the additional diligence effort.
Ordinarily, direct adversity will not exist between the interests of the Prospective Client and the Other Client because the issuer of the subpoena, not the subject of the subpoena, is adverse to the Prospective Client and a testimonial or documentary response by the Prospective Client does not constitute taking any “position” with respect to any of the subjects of the subpoena. Rather, the focus of the Prospective Client – and therefore the scope of the lawyer’s representation – is the legality and propriety of the subpoena and the respondent’s posting of proper objections to requests for production by the issuer of the subpoena.
The lawyer’s representation of the Prospective Client may, however, create a conflict of interest if the representation of that client would likely adversely affect, or be adversely affected by, the representation of another client or personal interests of the lawyer. However, Rules 1.7(b)(2)-(4) do not obligate lawyers to assess the possibility of conflicts based upon rank conjecture and speculation but, rather, only to determine, based upon a reasonable objective belief, that certain facts will develop that would create a substantial risk that the lawyer’s representation of a client will adversely affect or be adversely affected by ethical obligations to another client, former client, or herself.6
A few hypothetical examples may help to illustrate the applicable conflicts standard. Suppose a lawyer is asked to represent a hospital in producing medical records of a patient in response to a third-party subpoena issued by an insurance company in a vehicular personal injury matter. The parties to the litigation are the at-fault driver’s insurance company and the injured party, who is a client of the lawyer in a custody matter.7 In representing the hospital, the lawyer would be advising it on the scope of the subpoena, any deficiencies, and any objections, including, for example, the relevance and responsiveness of any documents of the injured party (Other Client) in the hospital’s possession.
At the outset of the representation, the lawyer does not know the contents of the medical records, and the lawyer’s review of the complaint does not provide any more information about what the medical records of the hospital might reveal. Typically, the lawyer may therefore undertake the hospital representation without it creating a Rule 1.7 conflict of interest. The mere possibility that responsive medical records of the hospital that might undermine the injured party’s claim exist and are produced does not give rise to a conflict of interest. There may be circumstances, however, where the lawyer’s knowledge about the facts surrounding the subpoena request and its implications might necessitate the lawyer’s consultation with the Other Client (subject of the subpoena) to properly assess conflicts of interest before undertaking the engagement by the Prospective Client.8
Suppose that the lawyer knows through and in the course of representing the Other Client in the custody case that the Other Client has been unable to honor the temporary custody schedule because of injuries sustained from athletic activities. As a result of the custody matter, the lawyer has in her possession medical records from the hospital during the relevant subpoena time period reflecting those injuries. Given the lawyer’s knowledge about the cause of the injuries documented in the medical records, undertaking the prospective representation might well create a conflict of interest under Rule 1.7(b)(2) or (b)(3) or under Rule 1.7(b)(4) with the personal interest of the lawyer herself.
The Committee concludes that to determine whether a conflict of interest exists in undertaking the prospective engagement, the lawyer must assess whether the lawyer knows,9 after performing reasonable diligence in evaluating the subpoena request as described above, that the Prospective Client possesses responsive information that, if produced, is or likely will be adverse10 to the subject of the subpoena (the Other Client).11 If so, then the lawyer must assess whether that knowledge will likely adversely affect the lawyer’s representation of either client. If it likely will, a Rule 1.7(b)(2) or (3) conflict exists.
If neither representation is likely to be adversely affected or the lawyer does not know in the first instance that the Prospective Client possesses responsive information that is likely to be adverse to the Other Client, the lawyer must nonetheless consider whether the lawyer has a personal conflict under Rule 1.7(b)(4). That is, the lawyer must determine in undertaking the prospective matter whether the lawyer’s professional judgment will or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own interests.12
A lawyer who concludes at the outset of the representation that undertaking the new engagement would create a Rule 1.7(b) conflict with the Other Client could still represent the Prospective Client if the lawyer satisfies Rule 1.7(c)’s requirements that the lawyer obtain the informed consent from each affected client and reasonably believes that she can provide competent and diligent representation to each client.13 A crucial initial consideration in this regard is whether the disclosure of the requisite information necessary to secure the informed consent of either the Prospective Client or the Other Client would violate the lawyer’s Rule 1.6 duty to protect the confidences and secrets of each.14 If so, then the lawyer could neither seek nor obtain informed consent and, as such, the lawyer would have to decline the prospective representation because the lawyer could not satisfy the Rule 1.7(c)(1) requirement.
If informed consent could be sought and were obtained, under Rule 1.7(c)(2), the lawyer must also undertake both a subjective self–assessment and an objective analysis to determine whether, notwithstanding the clients’ informed consent, the lawyer will be able to “provide competent and diligent representation” to each client. That assessment would include consideration of whether the lawyer might pull punches during the new representation either out of concern over the impact on the lawyer’s representation of the Other Client,15 or because of the lawyer’s own personal, financial or other interests.16
By way of further illustration, suppose a lawyer is asked to represent a bank that has received a Department of Justice subpoena for records of a party it is investigating for bribing a government official. News reports indicate that the subject of the investigation is a close personal friend of the government official and also a business person whose business seeks zoning approval and a building permit within the jurisdiction of the government official. The business is a long-standing client of the lawyer, which has generated substantial fees for the lawyer over time. The lawyer currently represents the business in litigation alleging breach of a commercial contract. The lawyer does not know at the outset of the prospective representation whether the bank possesses records reflecting payments from the business person to the government official, but the bank suspects that there might be some payments because of the frequency with which both transact at the bank and the time period involved.
While the lawyer does not have actual knowledge that the bank possesses any responsive documents damaging to the business person, nor does the lawyer represent the business person personally in a matter, the lawyer’s long-standing and substantial professional relationship with the business might prevent the lawyer from providing competent and diligent representation to the bank. For example, the lawyer might be overzealous in raising objections to production of the potentially damaging documents because they might adversely affect the principal of a long-standing and lucrative client, when the bank does not have any concerns about the production other than its own cost. Under these circumstances, the bank representation could create a personal conflict of interest for the lawyer. Barring a problem with the lawyer’s ability to provide competent and diligent representation to each client, without the lawyer’s actual knowledge that certain information harmful to the interests of the subject of the subpoena exists and is responsive, the mere possibility that documents responsive to the subpoena exist that are, or might be, adverse to the interests of the business person or the lawyer’s Other Client, the business, and might be produced, is purely speculative.
Even if it later develops that the lawyer’s speculation about the potentially damaging nature of the information produced results in the evidence being used adversely against the business, the subsequent factual confirmation of the lawyer’s speculation would not change the analysis.17 The production of Information adverse to a particular client would be an “unwitting” side effect of the representation of the Prospective Client, and not the lawyer’s attempt to seek a result for the Prospective Client “to which another client is opposed.”18< Nor would it be considered in hindsight to have been a Rule 1.7(b)(2) or (b)(3) conflict.
As discussed, although typically there is no ethical requirement that a lawyer disclose the prospective representation of a subpoenaed third-party to the Other Client (who is the subject of the subpoena), it might nonetheless be prudent for the lawyer to notify the Other Client of the prospective engagement – barring any Rule 1.6 (Confidentiality of Information) issues. The consultation could permit the Other Client an opportunity to voice concerns about the lawyer’s representation of the Prospective Client under the circumstances.
B. Discovery or development of a conflict after commencement of the representation of the Prospective Client
If the lawyer undertakes the representation of the Prospective Client, a conflict under Rule 1.7(b)(2), (b)(3), or (b)(4) may nevertheless arise after the representation commences if the lawyer’s discovery of potentially damaging information, prior to its production, might adversely affect the lawyer’s ability to competently and diligently represent either the Prospective Client or the Other Client.19
Returning to the first example of the third-party subpoena to the hospital by an insurance company in a vehicular personal injury matter where the lawyer also represents Other Client in a custody matter but does not possess knowledge of the Other Client’s medical issues: suppose after reviewing the medical records of the hospital for the Prospective Client for responsiveness and privilege, the lawyer discovers a note in the medical records that undermines, or would seem to undermine, the patient’s injury claim. Suppose further that the note reflects that the patient disclosed that he had participated in sports activities around the time of the accident and that such sports activities could have produced the same injuries being attributed to the accident.
As the lawyer learns information during the course of the third-party subpoena representation, through reviewing documents, discussions with the client, or otherwise, the lawyer might learn information prior to production that is harmful to the Other Client and might also conclude that such information is responsive to the subpoena. Under such circumstances, continuing to represent the Prospective Client might adversely affect, or be adversely affected by, representation of the Other Client.20 Or, the lawyer might conclude that there is a personal conflict pursuant to Rule 1.7(b)(4) because the lawyer’s professional judgment on behalf of the subpoenaed client will be or reasonably may be adversely affected by her responsibilities to a third party or by her own interests. Whether continuing the Prospective Client representation is a conflict of interest under Rules 1.7(b)(2) – (b)(4) is a matter of degree and a question of fact, which turns on whether a reasonable lawyer would conclude that there would be a diminution in the quality of the representation of either the Prospective Client or the Other Client.
Should the lawyer conclude in the affirmative, he or she must assess whether the conflict is consentable and if so, seek informed consent from each affected client.21 Such informed consent could be sought in advance in the engagement terms or sought contemporaneously.22 If the lawyer concludes that she may not seek informed consent, either because the lawyer reasonably concludes that she would be unable to provide competent and diligent representation to each affected client given the nature and degree of the conflict, or because confidentiality obligations prevent her from disclosing information sufficient to obtain informed consent, she may retain conflicts counsel to address that portion of the representation if the client agrees and the retention is otherwise consistent with the Rules.23 Otherwise, the lawyer must withdraw from the representation.24
2. Former Client Conflict of Interest
A lawyer’s representation of a Prospective Client to produce documents or give testimony that might include information adverse to the interests of a former client might constitute a conflict of interest if the prospective engagement is “the same or a substantially related matter in which [the Prospective Client’s] interests are materially adverse to the interests of the former client unless the former client gives informed consent.”25 The purpose of Rule 1.9, the former client conflicts rule, is twofold: first, to prevent “side-switching” and, second, to protect confidential factual information gained through or in the course of the prior representation from being used to the former client’s detriment in the current representation.26
Side-switching occurs when parties are materially adverse to each other in a subsequent substantially related matter and the former client’s lawyer begins representing a client in a matter adverse to the former client’s interests.27 In connection with a subpoena request, when a lawyer represents the Prospective Client either in a matter that is not adverse to the former client (subject of the subpoena) or in a matter that is not the same as nor substantially related to the matter in which the lawyer formerly represented the Other Client, the prohibition on side-switching is not implicated.
With respect to client confidences, the rule focuses on the risk that the former client’s confidential information may be used to benefit another client in a subsequent representation to the former client’s detriment. The rule assures the former client that information confided to the lawyer will not be used by the lawyer against the former client in a subsequent matter without the former client’s consent. The rule does not concern the possibility that some other party may later have information detrimental to the former client.28 In that circumstance, the lawyer is able to represent the Prospective Client to respond to a third-party subpoena involving the former client without running afoul of Rule 1.9.
Conclusion
A lawyer’s representation of a Prospective Client does not create a conflict of interest unless: (1) the lawyer knows, after performing reasonable diligence in evaluating the subpoena request, that the Prospective Client possesses responsive information that, if produced, is or likely will be adverse to the Other Client, and such knowledge likely will adversely affect the lawyer’s representation of either client; or (2) the lawyer’s professional judgment will or reasonably may be adversely affected by the lawyer’s responsibilities to or interests in a third party or the lawyer’s own financial, business, property, or other interests as a result of the prospective engagement. Reasonable diligence prior to undertaking the new engagement includes considering the particulars of the proceeding out of which the subpoena issued and the information contained in the subpoena itself, including the time period, the scope of information sought, and the names of persons identified and their connection to the information sought. It might also include review of publicly available information or consultation with the Other Client depending on the knowledge of the lawyer concerning the circumstances surrounding the subpoena request and its implications. Whether additional diligence would be required is a question of fact and varies by the circumstances.
A lawyer who undertakes a representation of a Prospective Client having concluded that there was not a conflict at the outset of the representation and who, despite reasonable diligence, does not discover a conflict throughout the engagement, has not violated Rule 1.7 if responsive Information produced is subsequently used by another party in a manner that is damaging to the Other Client.
However, if a lawyer discovers Information potentially damaging to the Other Client during the course of the Prospective Client engagement and prior to production, the lawyer must assess from both an objective and subjective perspective whether the lawyer’s ability to competently and diligently represent either the Prospective Client or the Other Client might be comprised. If such Information readily appears to be, or reasonably will be, damaging to the lawyer’s Other Client (not speculatively), then it is a conflict that develops after commencement of the engagement, for which informed consent from each affected client would be required. If informed consent is not obtained, then conflicts counsel would have to be retained, if permissible, or the lawyer must withdraw.
Finally, a lawyer’s representation of a prospective client in responding to a third-party subpoena that seeks Information about a lawyer’s former client does not create a conflict of interest unless the subpoena matter is the same as or substantially related to the lawyer’s former representation and the interests of the prospective client and former client are adverse.
Published: February 2021
1. The reference to documents, physical things, property, or testimony in this Opinion is intended to incorporate the same terms and definitions as contained in Federal Rule of Civil Procedure 34.
2. This Opinion does not address instances where the lawyer is the recipient of a third-party subpoena for his or her own records or for the records of the lawyer’s firm. See D.C. Legal Ethics Opinion 288 (1999).
3. A lawyer reviewing a subpoena that does not specify names, but only a certain time period, will ordinarily be unable to identify a conflict at the outset of the representation, but might become aware of one after commencement of the representation. See section 1.B. infra.
4. D.C. Rule 1.0(h) defines “matter” broadly to mean “any litigation, administrative proceeding, lobbying activity, application, claim, investigation, arrest, charge or accusation, the drafting of a contract, a negotiation, estate or family relations practice issue, or any other representation, except as expressly limited in a particular rule.” Rule 1.0 (h).
5. Rule 1.7 and see, e.g., Comments [7], [19], and [29].
6. See Rule 1.7 Comments [7], [9], and [19]. See also D.C. Legal Ethics Opinion 356 (2010) (“a conflict must be clear, specific and not based on mere speculation.”); Rule 1.7(d) (the standard is “reasonably foreseeable” when assessing whether a conflict could have been anticipated at the outset of the representation).
7. The Committee does not see any meaningful distinction in the conflicts analysis if the request for production of medical records is in the form of a pre-complaint letter request rather than a subpoena issued out of litigation.
8. See, e.g., Comment [19] to Rule 1.7.
9. Rule 1.0(f) defines “knowledge” or “knows” as “actual knowledge of the fact in question,” which “may be inferred from the circumstances.”
10. Whether or not information known to the lawyer is “adverse” or “harmful” is left to the reasonable judgment of the lawyer.
11. While Rule 1.3(b)(2) provides that “[a] lawyer shall not intentionally prejudice or damage a client during the course of the professional relationship,” the act of producing responsive information on behalf of another client that might be harmful to a lawyer’s client does not run afoul of Rule 1.3(b)(2) because it is not in the matter in which the lawyer represents the client and “Rule 1.3 is not meant to govern conflicts of interest, which are addressed by Rules 1.7, 1.8, and 1.9.”
12. See Rule 1.7(b)(4) infra as quoted in the body of the Opinion.
13. Rule 1.0(e) defines informed consent as “the agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably alternatives to the proposed course of conduct.” Such required “information and explanation” varies by circumstances and is subject to a variety of factors, including the sophistication, vel non, of the person granting the informed consent.
Rule 1.7(c) provides that a lawyer may represent a client notwithstanding a conflict if “(1) each potentially affected client provides informed consent to such representation after full disclosure of the existence and nature of the possible conflict and the possible adverse consequences of such representation; and (2) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client under the circumstances.”
14. Moreover, pursuant to Rule 1.18(b), “Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as permitted by Rule 1.6.” Thus, the duty of confidentiality owed to a prospective client is coextensive with the duty owed to an actual client. In some instances, the mere fact of the representation or prospective representation may constitute a Rule 1.6 secret, further potentially complicating the ability of the lawyer to obtain the requisite informed consent.
15. As explained in D.C. Legal Ethics Opinion 380 (2021), “‘Punch pulling’ is a boxing term that refers to a fighter purposefully hitting his adversary with less than full force – as if the fighter pulled back a punch before making contact. In the professional responsibility context, a punch pulling conflict refers to circumstances where a lawyer is less zealous in advocating for, or advising, a client out of concern over the impact on the lawyer’s representation of another client.”
16. See Rules 1.1, 1.3, and 1.7(c)(2) and see, e.g., comment [7] (“The underlying premise is that disclosure and informed consent are required before assuming a representation if there is any reason to doubt the lawyer’s ability to provide wholehearted and zealous representation of a client….”).
17. See D.C. Legal Ethics Opinion 356 (2010).
18. See Rule 1.7, Comment [19].
19. Because of the nature of the third-party representation, a conflict of interest will not typically arise under Rule 1.7 (b)(1) because, as stated previously, raising objections to a subpoena or providing responsive documents is not adverse to the subject of the subpoena (the Other Client) but, rather, is adverse to the issuer of the subpoena. In the unusual circumstance that a Rule 1.7(b)(1) conflict arises in connection with responding to a third-party subpoena, the conflict might be considered under the “thrust upon” scenario pursuant to Rule 1.7(d). D.C. Legal Ethics Opinion 356 might also be instructive in this regard. But, see, footnote 22 infra.
20. See Rule 1.7(b)(2) or (b)(3).
21. See Rule 1.7(c) and Rules 1.1 and 1.3.
22. While advance waivers of conflicts of interest are permissible under certain circumstances, they are more susceptible to failing the informed consent standard than contemporaneous consents. See Rule 1.7, Comment [31]. See also D.C. Legal Ethics Opinion 309 (2001) (“The less specific the circumstances considered by the client and the less sophisticated the client, the less likely that an advanced waiver will be valid.”). A client may also revoke valid consents. D.C. Legal Ethics Opinion 317 (2002).
23. “Conflicts counsel” has the same definition as set forth in endnote 11 of D.C. Legal Ethics Opinion 380 (2021). (“‘Conflicts counsel’ is the designation generally applied to the retention of a lawyer from a different firm engaged solely to represent the client on the discrete, severable aspect of the matter that gave rise to the conflict.…”).
24. Rule 1.7(d) will typically not be available to a lawyer who concludes that a conflict has arisen during a representation in this context because a conflict arising under Rule 1.7(b)(2)-(4) is not consentable under Rule 1.7(d). As to withdrawal, see Rule 1.16 (Declining or Terminating Representation).
25. Rule 1.9 states: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.”
26. See Rule 1.9, Comments [2] and [3]; D.C. Legal Ethics Opinion 272 (1997) (“purpose of the rule is to assure the preservation of attorney-client confidences gained in the prior representation and to preserve the reasonable expectations of the former client that the attorney will not seek to benefit from the prior representation at the expense of the former client”); and Brown v. District of Columbia Board of Zoning Adjustment, 486 A.2d 37 (D.C. 1984) (en banc).
27. Cf, Rule 1.9, Comment [2]: “[A] lawyer who recurrently handled a type of problem for a former client is not precluded from later representing another client in a wholly distinct problem of that type even though the subsequent representation involves a position adverse to the prior client.”
28. See Rule 1.9, Comment [3]: “Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying.”
