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Attorney Subpoena - You Are Hereby Commanded to Betray Your Client

NCJ Number
Criminal Justice Volume: 1 Issue: 1 Dated: (Spring 1986) Pages: 14-19,47-48
D S Rudolf; T K Maher
Date Published
8 pages
Prior judicial review should be required for a decision to issue any subpoena to an attorney that may materially impair the attorney-client relationship.
Although some courts ('Harvey' and 'Doe') have quashed attorney subpoenas because of their undermining of the attorney-client relationship, other courts have not. Even the quashing of a subpoena does not invalidate the damage done to attorney-client relations. The U.S. Justice Department, under urging by the American Bar Association, has adopted guidelines designed to limit Federal prosecutors' use of attorney subpoenas, but the policy must be enforced by the agency that has a bias toward the prosecution. The Massachusetts Supreme Judicial Court has adopted (January 1, 1986) a disciplinary rule that cites as unprofessional conduct the issuing of grand jury subpoenas to attorneys without prior judicial approval. All the aforementioned approaches point up the importance of eliminating attorney subpoenas that fail to meet certain criteria that protect the attorney-client relationship, but they do not go far enough in ensuring that the criteria are followed in prosecutorial decisions. To remedy this flaw, prosecutors should be required to obtain judicial approval for any subpoena issued to an attorney.


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