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OCDC Article: Responding to a Subpoena for Confidential Client Information
Published: Jan 1, 2018
2] Foundational to this trust is the assurance that a lawyer will not reveal information related to the representation of a client without the informed consent of the client or unless the confidentiality rule authorizes disclosure.
A lawyer faced with a subpoena for confidential client information can chart a clear path by considering four questions: (1) Is the information the subpoena seeks protected by Rule 4-1.6?; (2) Has the client given informed consent to disclosure?; (3) Is disclosure impliedly authorized to carry out the representation?; and (4) Is disclosure of the information required by “other law or a court order”?
21] After a client’s death or incapacity, a lawyer may be contacted or subpoenaed by a trustee, personal representative, beneficiary, or attorney in fact. The practitioner who retains documentation of a deceased or incapacitated client’s prior grant of specific informed consent may be able to serve the client more comprehensively, circumvent the time and expense of opposing a subpoena, or escape the need to hold to the slender thread of the implied authorization exception, discussed below.
42 Rule 5.30(c).