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Privileged Informers: The Attorney Subpoena Problem and a Proposal for Reform

NCJ Number
University of Pennsylvania Law Review Volume: 136 Issue: 6 Dated: (June 1988) Pages: 1783-1854
M D Stern; D Hoffman
Date Published
72 pages
This paper examines the Government's use of subpoenas requiring defense attorneys to testify before a grand jury, the associated ethical dilemmas, and possible solutions.
This practice represents a sharp break with the traditions and expectations on which the legal system is based and has resulted in the disruption or destruction of the attorney-client relationship. Current legal protections fail to protect adequately the relationship. Because of significant gaps in the coverage of existing attorney-client and work-product privileges, some discoverable information in an attorney's possession can usually be obtained by a prosecutor determined to make the attorney a witness. Faced with the unwelcome prospect of compelling attorneys to testify against their own clients, some courts have attempted to close gaps in the area of privilege, while others have used their supervisory powers to regulate the use of attorney subpoenas. However, new safeguards have failed to keep pace with the Government's changing investigative and prosecutorial strategies. Four reforms are proposed to restore the balance between the individual's right to counsel and the Government's need for evidence. These include procedures and standards for judicial review that would restrict the Government's attempts to obtain client information from the client's attorney, especially when that information would incriminate the client or when the attorney is still representing the client. Implementation of these reforms would restore greater reliability and predictability to the confidentiality of attorney-client communications. Guidelines and resolutions on the use of attorney subpoenas are appended. 305 footnotes.