U.S. flag

An official website of the United States government, Department of Justice.

NCJRS Virtual Library

The Virtual Library houses over 235,000 criminal justice resources, including all known OJP works.
Click here to search the NCJRS Virtual Library

Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform (From Criminal Law Review - 1989, P 275-346, 1989, James G. Carr, ed. -- See NCJ-121027)

NCJ Number
M D Stern; D Hoffman
Date Published
72 pages
This article discusses the attorney subpoena as an investigative tool to obtain non-privileged client information in the possession of an attorney, how the attorney subpoena affects the attorney-client privilege and the work product doctrine, and how fifth and sixth amendment protections can be mobilized to thwart attorney subpoenas.
Relevant Federal circuit court and Supreme Court cases are analyzed, as are comprehensive attorney subpoena guidelines issued by the U.S. Department of Justice. The Justice Department guidelines contain procedural and substantive provisions to regulate the use of attorney subpoenas. Four proposals are offered in the article to restore the balance between the interests of the prosecution and grand jury on one hand and the attorney-client privilege on the other. First, no attorney subpoena could be issued unless it was first subjected to judicial review to determine whether it was, in fact, needed. Second, in every case, judicial review would occur prior to the issuance of an attorney subpoena. Third, attorneys would not be compelled to disclose information, acquired in the course of representation, that would incriminate the client, and this could include such information as clients' names and fees paid. Fourth, some information acquired by the attorney during the course of representation would be immune from compulsory process during the ongoing course of representation. Appendixes include the attorney subpoena guidelines developed by the U.S. Justice Department as well as American Bar Association resolutions on the subject. 305 footnotes.