The Client File Under Subpoena: Between Contempt and Confidentiality
The firm represented Dana Whitfield two years ago in the sale of her bakery. The matter is closed. The file contains the purchase agreement drafts, closing documents, a title search, three internal emails between the partner and an associate analyzing whether a non-compete in the deal would be enforceable, a memo to Ms. Whitfield on tax allocation, billing records with narrative entries, and notes from two phone calls with Ms. Whitfield. A subpoena duces tecum arrives from a lawyer representing Ms. Whitfield's ex-husband in an unrelated divorce proceeding, demanding 'the complete client file, including all emails, notes, and billing records,' with production in ten days. Ms. Whitfield emails: 'That file is mine. Do not give them anything. I'll sue you if you do.' The jurisdiction has adopted the Model Rules; no statute addresses ownership of the file. The subpoena is not accompanied by a court order, and no objection has been filed.
1. List what you must do in the ten days and explain why you cannot simply comply or simply refuse.
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In the ten days: (1) calendar the return date and diarize the objection deadline under the jurisdiction's subpoena rules; (2) confirm the subpoena was properly issued and served and that the issuing court has jurisdiction over the firm; (3) notify Ms. Whitfield in writing that a subpoena was served, that the firm intends to object, and that she may wish to consult her own lawyer about a motion to quash or a protective order; (4) serve written objections on the issuing lawyer before the return date, specifying privilege, work product, relevance, and overbreadth; (5) if the issuing lawyer will not narrow the demand, move to quash or for a protective order; (6) suspend document destruction, including routine email deletion, and issue a litigation hold.
You cannot simply comply: producing privileged material waives the privilege and breaches the duty of confidentiality, which survives the end of the representation. You cannot simply refuse: a subpoena is court process, and ignoring it exposes the firm to contempt even where the client has instructed that nothing be produced. The client's instruction governs how her privilege is asserted, not whether the firm responds to the subpoena at all.
2. Categorize the contents of the file: what you would produce, what you would withhold, and what you would redact. Explain.
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Produce, subject to objection: the executed purchase agreement, closing documents, and title search. These are transaction documents, not communications, and are the ordinary subject of a document subpoena in a dispute about sale proceeds.
Withhold: the three internal emails analyzing the non-compete (attorney-client communication and opinion work product), the notes of the two phone calls (same), and the tax memo to Ms. Whitfield - unless it was shared with her accountant, in which case analyze waiver, since sharing with an accountant for tax preparation may or may not waive depending on the jurisdiction.
Redact: the billing records. Produce dates, hours, and amounts; redact narrative entries, which reveal legal strategy and the substance of advice. Fee information is generally not privileged, so withholding the bills wholesale is indefensible, but narrative descriptions are a common vehicle for inadvertent disclosure of advice.
Provide a privilege log identifying each withheld document by date, author, recipient, and general subject without disclosing content. The log exists so the court can assess the claim, not so the firm can argue the merits inside it.
3. How do you respond to Ms. Whitfield?
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Respond promptly, in writing, and treat her email as neither an instruction you can simply obey nor a threat you can ignore. The substance: the firm has received a subpoena in a matter in which she is a party; the firm will assert every applicable privilege and will not voluntarily produce her confidential information; the firm cannot, however, refuse to respond to court process, and if she wants production blocked entirely she needs to seek a protective order, which the firm will support.
Because the firm's interest in avoiding contempt may differ from hers, tell her she should consider retaining separate counsel for the divorce matter. Do not agree to withhold non-privileged documents merely because she demands it, and do not promise that nothing will be produced - either promise may have to be broken within ten days.
Document the conversation contemporaneously, including her instruction not to produce, so the firm can show it acted on the client's direction wherever that direction was lawful. A calm written explanation is also the best answer to 'I'll sue you': it demonstrates that the firm protected her confidences as far as the law allowed.