Multistate Professional Responsibility Examination (MPRE)The Client-Lawyer RelationshipMedium
A lawyer represents a client who is suing a former business partner for breach of contract. During discovery, the opposing counsel serves a subpoena duces tecum on the lawyer, demanding the production of all communications between the lawyer and the client related to the formation of the contract. The client has not waived the attorney-client privilege. What is the lawyer's ethical obligation?
- AThe lawyer must produce the documents but redact any truly sensitive information.
- BThe lawyer must assert the attorney-client privilege and move to quash the subpoena.
- CThe lawyer must seek the client's permission to disclose the communications.
- DThe lawyer must produce the documents as ordered by the subpoena.
Show answer & explanationAnswer & explanation
Correct answer: B. The lawyer must assert the attorney-client privilege and move to quash the subpoena.
A lawyer has a duty to protect client confidences, which includes asserting the attorney-client privilege when faced with a demand for privileged information. The lawyer should move to quash or seek a protective order unless the client waives the privilege.
Why the other options are wrong
- A. Redaction is for non-privileged information or when privilege is partially waived, not for documents clearly subject to a blanket privilege claim.
- C. Seeking permission is an option if the client *wants* to waive, but the primary duty is to protect the privilege if it has not been waived.
- D. Producing privileged documents without asserting the privilege would be a breach of confidentiality.
Asserting Attorney-Client Privilege
When faced with a demand for privileged client communications, a lawyer has an ethical obligation to assert the attorney-client privilege on behalf of the client and resist disclosure, unless the client has waived the privilege.
- Duty to protect privilege.
- Assert privilege (move to quash/protective order).
- Client holds the privilege, not the lawyer.
Memory trick: Privilege Protect: Block the subpoena, client's secret is safe.