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Ethics FAQs

A lawyer receives a subpoena for documents from the file of a former client, who is not a party to the litigation. The former client has not consented to the production of any documents. May the lawyer produce non-privileged documents from the file or must the lawyer object to the subpoena and refuse to comply absent a further court order compelling production?
 

Answer
The duty of confidentiality under Rule 1.6 is different from and can be broader than the attorney-client privilege or the work product doctrine. See Wilcox & Crystal, Annotated SC Rules of Professional Conduct, Rule 1.6, comment 3 (2013). Pursuant to the Rules of Professional Conduct, Rule 1.6, disclosure is not permitted without the client’s permission or a court order. The lawyer should assert the protections of Rule 1.6 in response to the subpoena and refuse to produce any documents absent a further court order compelling production.