The Practical Effect of New Ethics Rules: Responding to Subpoenas and Document Requests About Client Information

Abstract

            This article is a comparative overview of the American Bar Association’s Model Rule 1.6(b) before and after the issuance of the ABA’s Formal Opinion 473, issued on February 17, 2016, which was an attempt to restate and revise the rule’s ethical expectations and to help settle several questions that had plagued the rule’s practical application. A lawyer’s duty of confidentiality to his or her client, and the public policy favoring judicial efficiency and fair disclosure during the discovery phase of litigation, often places lawyers in precarious ethical positions. This article attempts to provide guidance on this issue through an analysis of the rule and the context in which a lawyer’s overarching duty to keep his or her client’s information confidential can be precluded by the lawful compulsion to disclose such information without incurring malpractice liability.