Q: Dear Ethics Lawyer, I represented a closely-held LLC in the sale of real estate. A story broke yesterday that the LLC’s principal is being investigated for various alleged frauds and tax evasion. Now, an IRS agent has made an unannounced visit wanting to talk to me about the transaction I was involved in, and asking to review at least the non-privileged information in our file. What should I do? What if, instead, I was served with a confidential grand jury subpoena that instructs me not to inform anyone about it?
A: The answer here is fairly obvious, but sometime we get caught off-guard, particularly when approached without warning by a government investigator. Information about a closed matter, and relating to former clients does not lose its protection under Model Rule 1.6 or attorney-client privilege. It is also important to remember that Rule 1.6 protects all “information relating to the representation of a client,” not just privileged material. Therefore, without client consent or legal compulsion, you should not permit this requested review. You should also advise the client of the request.
You pose the alternate question concerning a grand jury subpoena labeled confidential. Rule 1.6 permits disclosure of information it protects to “comply with other law or a court order.” The question concerning whether you could or should notify the client so that there is an opportunity for the client to undertake protective action is one as to which you should consult with counsel knowledgeable about grand jury proceedings in that forum. In addition, the disclosure of attorney-client privileged information is outside the scope of the exception to Rule 1.6. The right to assert or waive the privilege belongs to the client, however, and you should do nothing to waive it, at least in the absence of a specific court order. Again, this would be a matter to address with a lawyer knowledgeable in grand jury proceedings.