Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Subpoenas to Clients

What happens when you discover that one of the key witnesses in your client’s (“Client A”) case turns out to be another client (“Client B”)?  Can you use a third-party subpoena to obtain Client B’s records?  According to COPRAC – the State Bar’s Standing Committee on Professional Responsibility and Conduct – the answer is yes, in some instances.  But COPRAC’s opinion leaves many questions unanswered, and given the practical realities of such a situation, practitioners would be wise to proceed with caution (or not at all) in serving subpoenas on your own clients. 

COPRAC’s most recent ethics opinion, Formal Opinion No. 2011-182, addresses a hypothetical situation where the attorney knows at the outset of the representation that it will be necessary to subpoena records from another client of the same law firm.1  Having concluded that “serving any type of third-party discovery on a current client is adverse and would violate an attorney’s duty of loyalty[,]” COPRAC opines that the attorney may proceed with the adverse representation provided the attorney obtains both clients’ consent in accordance with Rule of Professional Conduct 3-310. 

Obtaining both clients’ informed written consent may not be so easy, as the attorney must “disclose to each client the relevant facts and circumstances and the reasonably foreseeable adverse consequences of waiving any conflicts arising out of the Attorney’s representation…”  (See Opinion, p.4, §3.)  COPRAC states that full disclosure would require the attorney to explain all legal detriments that may result from the concurrent representation of both clients, including the fact that representing Client A with respect to the subpoena would violate the attorney’s duty of loyalty to Client B.  One has to question how many clients would waive a conflict when their attorney tells the client that they intend to violate their duty of loyalty to the client, let alone how many attorneys would want to make such a damning admission. 

COPRAC does note that there may be some circumstances in which the conflict cannot be cured even with the clients’ informed written consent, particularly where the clients’ interests are directly adverse in the same litigation.  (See Flatt v. Sup. Ct. (1994) 9 Cal.4th 275, 284 fn. 3.)  But after conceding that the service of the subpoena is adverse to Client B, the Opinion does not address why COPRAC believes that does not make Client A and Client B directly adverse in the litigation.  While Client B may not be a named party in the litigation, the subpoena is being served in the same litigation, and therefore the adverse representation would appear to give rise to a conflict that cannot be waived.  What if Client B moves to quash the subpoena, or seeks a protective order – can the attorney oppose such motions against his own client? 

As the name implies, ethics opinions such as Opinion 2011-182 are just opinions and are not binding authority.  Thus, attorneys must be particularly careful in relying on such opinions.  COPRAC Opinion 2011-182 should not be read as anything more than a determination by COPRAC that it might, in some limited circumstances, be possible to serve a subpoena on your own client.  But before doing so, attorneys would be wise to look to Flatt and the other binding authorities and applying them to their own facts and circumstances.

-- Jack Leer

1A complete copy of Opinion 2011-182 can be found at www.ethics.calbar.ca.gov/ethics/opinions.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**