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LEGAL PRACTICE TIPS You’ve Just Been Subpoenaed Uncomfortable Position By Mark J. Fucile ongoing proceeding in which the lawyer’s firm is representing the client concerned. Both because the duties invoked are central to the attorney-client relation- ship and receiving a subpoena is out of the ordinary, lawyers should not respond without getting seasoned advice. The Professional Liability Fund in particular counsels lawyers to contact it if they re- ceive a subpoena seeking either their file or their testimony. 5 iStock Confidentiality and Privilege O ne of the most professionally un- comfortable positions a lawyer can encounter is being on the receiving end of a subpoena seeking tes- timony about past work, the related file or both. The reasons lawyers are subpoe- naed are many and varied. In some in- stances, a lawyer may have done work for a client that is now relevant to a dispute between the client and a third party. 1 In others, a firm lawyer may have par- ticipated in negotiations over a contract at issue in a subsequent lawsuit. 2 In still others, the actions of the lawyers them- selves may have become relevant in an ongoing proceeding. 3 Whatever the trigger, being served with a testimonial or file subpoena isn’t likely to be an everyday occurrence for most lawyers or their firms. 4 In this col- umn, we’ll first survey the closely associ- ated duties of confidentiality and privilege involved. We’ll then turn to the potential impact of having a firm lawyer testify in an 32 OREGON STATE BAR BULLETIN • JUNE 2016 Under RPC 1.6(a), lawyers have a broad duty of confidentiality extending to “information relating to the represen- tation of a client[.]” 6 RPC 1.0(f) defines that phrase to include “both information protected by the attorney-client privilege under applicable law, and other informa- privilege. 8 OEC 503(1)(b) defines “con- fidential communication” as “a commu- nication not intended to be disclosed to third persons[.]” Under OEC 503(3), the privilege extends beyond the end of the attorney-client relationship and the death of a client. 9 Other law, too, may come into play. The work product rule, codified in Or- egon state and federal proceedings at, respectively, ORCP 36(B)(3) and FRCP 26(b)(3), generally provides protection for a lawyer’s notes, research and mental impressions prepared in conjunction with anticipated or ongoing litigation. 10 Confi- dentiality agreements may trigger obliga- tions to at least notify parties that materi- als covered by those agreements are being sought by subpoena. 11 Statutory law, such as ORS 36.220(1)(a) governing media- Because the duties invoked are central to the attorney-client relationship and receiving a subpoena is out of the ordinary, lawyers should not respond without getting seasoned advice. tion gained in a current or former profes- sional relationship that the client has re- quested be held inviolate or the disclosure of which would be embarrassing or would be likely detrimental to the client.” Under RPC 1.9(c), the duty of confidentiality continues beyond the end of an attorney- client relationship and transcends even the death of a client. 7 Under OEC 503(2), lawyers have a corresponding duty to protect communi- cations falling within the attorney-client tion communications, may also restrict disclosure. 12 Both Comment 15 to ABA Model Rule 1.6 on which Oregon’s confidential- ity rule is now patterned and OEC 503(3) counsel that a lawyer’s duty is to assert privilege pending further instructions from the client. If the client directs the lawyer to contest or otherwise limit the subpoena, Comment 15 also suggests that “the law- yer should assert on behalf of the client all nonfrivolous claims that . . . [the discovery