An attorney represents a client who is a whistleblower in a complex fraud case against a large corporation. The attorney receives a valid subpoena from a government agency requesting documents that contain both confidential client communications and information protected by the work product doctrine. The client explicitly instructs the attorney to assert all available privileges and protections. What is the attorney's obligation regarding the subpoena?
- AThe attorney must assert both the attorney-client privilege and the work product doctrine for the relevant documents.
- BThe attorney must produce the documents but inform the agency they are asserting the privileges, without actually withholding them.
- CThe attorney must produce all documents, as a government subpoena overrides both attorney-client privilege and work product doctrine.
- DThe attorney must produce documents protected only by the work product doctrine, but withhold those protected by attorney-client privilege.
Show answer & explanationAnswer & explanation
Correct answer: A. The attorney must assert both the attorney-client privilege and the work product doctrine for the relevant documents.
Both the attorney-client privilege and the work product doctrine are distinct protections for confidential information and trial preparation materials, respectively. A valid subpoena does not automatically override these protections. The attorney has an ethical obligation to assert these privileges on behalf of the client when instructed to do so, and to withhold the protected documents unless a court orders their production after an in camera review.
Why the other options are wrong
- B. Simply informing is not enough; the attorney must actively assert the privilege by withholding the documents and challenging the subpoena.
- C. A subpoena does not automatically waive or override valid privileges.
- D. Both privilege and work product are valid grounds for withholding, and the client instructed to assert 'all available protections.'
Asserting Privileges
When faced with a demand for privileged or protected information, an attorney has an ethical duty to assert all applicable privileges (e.g., attorney-client privilege, work product doctrine) on behalf of the client, unless the client provides informed consent to waive them.
- Subpoena does not automatically override privileges.
- Attorney must assert privileges on client's behalf.
- Work product doctrine is distinct from attorney-client privilege.
- Client controls waiver of attorney-client privilege.
Memory trick: Subpoena's knock? Privilege is your lock.