A lawyer represents a client who is a witness in a federal investigation. The client has provided the lawyer with detailed, confidential information. Subsequently, the client is subpoenaed to testify before a grand jury and specifically asked about the information previously shared with the lawyer. The client asks the lawyer if they must answer these questions. What is the lawyer's best advice to the client regarding the subpoenaed information?
- AThe client should assert the attorney-client privilege and refuse to answer the questions.
- BThe client should consult with the lawyer regarding the scope of the privilege and the potential implications of asserting or waiving it.
- CThe client should only answer questions that do not reveal information already known by the grand jury.
- DThe client must answer truthfully, as grand jury subpoenas override attorney-client privilege.
Show answer & explanationAnswer & explanation
Correct answer: B. The client should consult with the lawyer regarding the scope of the privilege and the potential implications of asserting or waiving it.
The attorney-client privilege protects confidential communications between an attorney and client for the purpose of seeking legal advice. While a grand jury subpoena is a serious demand, it does not automatically override privilege. The lawyer's duty is to advise the client on the applicability of the privilege, its scope, and the consequences of asserting it or waiving it, allowing the client to make an informed decision.
Why the other options are wrong
- A. While asserting privilege may be appropriate, the client needs comprehensive advice on its scope and the consequences, rather than a blanket instruction to refuse.
- C. The scope of privilege is not determined by what the grand jury already knows.
- D. Grand jury subpoenas do not automatically override attorney-client privilege; privilege must be asserted.
Asserting Attorney-Client Privilege
When confidential, privileged information is sought by compulsion, the lawyer must advise the client on the privilege's applicability, scope, and the consequences of asserting or waiving it, enabling the client to make an informed decision.
- Privilege belongs to the client, not the lawyer.
- It must be actively asserted to protect information.
- Waiver can be intentional or inadvertent.
Memory trick: Subpoena? Privilege is Yours, Client's Call.