The Client Who Said 'Don't Write Anything Down'

Complying created more risk than it avoided. The attorney's instinct - limit discoverable material - is understandable but the method was wrong. Three problems:

• No contemporaneous record means no defense. If the witness later recants, or the prosecutor alleges the interview was coached, Tomas has a calendar entry and an invoice. He cannot show what was asked, what was said, or what the witness volunteered.
• Billing and business records exist anyway. The invoice, the calendar, and the paid source's payment trail are all discoverable and now tell a story with no counter-narrative.
• Spoliation exposure. Once a subpoena is reasonably anticipated, destroying or failing to create records becomes its own problem.

What he should have done: keep a factual, dated memo-to-file of the interview, the signed statement in a secure location, and a record of the source payment; then route the privilege question to the retaining attorney in writing. Work product protection is asserted through counsel and preserved by careful record-keeping, not by having no records. If the attorney wanted a verbal briefing, Tomas could give one and still maintain the file - the two are not in conflict.

Do not ignore it and do not simply hand over everything. A subpoena is a court process with a deadline, and non-response invites contempt.

Steps:

1. Calendar the return date immediately and read what is actually demanded - the scope of 'all files' is often broader than the issuing party needs.
2. Notify the retaining attorney in writing the same day. The privilege here belongs to the client, and the attorney decides whether to assert it. Tomas's obligation is to preserve and to inform, not to waive.
3. Preserve everything now - suspend any deletion, imaging, or office-move destruction touching the matter.
4. Assert objections through counsel where privilege or work product applies, and seek a protective order or a court ruling on disputed items rather than self-selecting. If production is required, produce with a written objection and a privilege log for anything withheld.
5. Document the chain of custody for the recording and the source information, since authenticity will be challenged.

The lesson for the agency's policy: a written subpoena-response protocol naming who receives process, who calls the client, and who preserves records. A solo investigator who is out of the office for a week should not be the single point of failure.

Cooperate, on time, in writing, and without editorializing. A Board inquiry is not the place to argue the merits of the ex-spouse's character; it is the place to demonstrate that the licensee keeps records and tells the truth.

Response plan:

• Acknowledge receipt promptly and ask for any extension you need in writing before the deadline, not after.
• Reconstruct the file from what survives: the engagement letter, the invoice, calendar entries, phone records, emails, and any draft reports. Present the reconstruction as a reconstruction - do not fill gaps with confident recollection.
• Address the substance honestly. If the address was disclosed, say to whom, when, and under what authority; if it was not, identify what evidence supports that. Confidentiality obligations do not evaporate because a file is closed.
• Explain the destruction candidly. Routine destruction after a defined retention period is defensible; destruction during an office move with no retention schedule is not. Expect the Board to focus on the absence of a written retention policy as much as on the allegation.
• Do not contact the complainant directly about the complaint. Route everything through the Board process and your own counsel.

Then fix the root cause: adopt a written retention schedule, a locked storage method, and a rule that no file is destroyed while any complaint, subpoena, or claim is open or reasonably anticipated.