Multistate Professional Responsibility Examination (MPRE)The Client-Lawyer RelationshipEasy
A lawyer represents an inventor in a patent infringement lawsuit. During the discovery phase, the opposing counsel serves a subpoena demanding all communications between the lawyer and the inventor regarding the development of the patented invention, arguing that the inventor's state of mind is relevant. The lawyer believes these communications are protected by attorney-client privilege. What is the lawyer's most appropriate initial response to the subpoena?
- AImmediately comply with the subpoena and produce all requested communications to avoid contempt of court.
- BProduce the communications but redact any information that the lawyer believes is privileged.
- CContact the opposing counsel and informally negotiate which documents to produce.
- DAssert the attorney-client privilege and move to quash the subpoena or seek a protective order.
Show answer & explanationAnswer & explanation
Correct answer: D. Assert the attorney-client privilege and move to quash the subpoena or seek a protective order.
When faced with a subpoena for privileged information, a lawyer's primary duty is to assert the privilege on behalf of the client and take appropriate legal steps, such as moving to quash or seeking a protective order, rather than unilaterally disclosing or redacting information.
Why the other options are wrong
- A. Complying immediately would waive the privilege and violate the lawyer's duty to the client.
- B. While redaction might be part of a later process, the initial step is to assert the privilege and seek a court ruling.
- C. Informal negotiation does not adequately protect the privilege; a formal legal challenge is required.
Asserting Attorney-Client Privilege
A lawyer has an ethical obligation to assert the attorney-client privilege on behalf of the client when faced with a demand for privileged information.
- Privilege belongs to the client, not the lawyer.
- Lawyer must not voluntarily disclose privileged information.
- If compelled, lawyer must assert privilege and seek court ruling.
Memory trick: Privilege is Client's Shield, Lawyer Must Wield.