Multistate Professional Responsibility Examination (MPRE)The Client-Lawyer RelationshipEasy
A lawyer represents a client in a product liability lawsuit against a large manufacturer. During discovery, the opposing counsel serves a subpoena demanding the production of all communications between the lawyer and the client related to the client's knowledge of the product's defects prior to the lawsuit. The client explicitly instructs the lawyer to assert attorney-client privilege. What is the lawyer's primary ethical obligation regarding this subpoena?
- AThe lawyer must disclose the communications but inform the court that they are being produced under protest.
- BThe lawyer must assert attorney-client privilege and resist the subpoena, as instructed by the client.
- CThe lawyer must seek a court order to determine the applicability of the privilege before responding to the subpoena.
- DThe lawyer must produce the communications, as the opposing counsel's subpoena overrides attorney-client privilege in discovery.
Show answer & explanationAnswer & explanation
Correct answer: B. The lawyer must assert attorney-client privilege and resist the subpoena, as instructed by the client.
The attorney-client privilege belongs to the client, and the lawyer has a duty to assert it when applicable and instructed by the client. A subpoena alone does not automatically override a valid claim of privilege.
Why the other options are wrong
- A. Disclosing privileged communications, even under protest, would be a breach of the lawyer's duty to protect client confidentiality and assert the privilege.
- C. While a court may ultimately rule on the privilege, the lawyer's initial obligation is to assert the privilege, not immediately seek a court order for guidance.
- D. A subpoena does not automatically override a valid claim of attorney-client privilege; the privilege must be asserted.
Asserting Attorney-Client Privilege
A lawyer has a duty to assert the attorney-client privilege on behalf of the client when applicable, particularly when instructed by the client, to protect confidential communications.
- The privilege belongs to the client, not the lawyer.
- It protects confidential communications made for the purpose of securing legal advice.
- Lawyers must resist attempts to compel disclosure of privileged information unless the privilege is waived or an exception applies.
Memory trick: The client's secrets are locked in the lawyer's vault, and only the client holds the key.