By Paul J. Schwab, III

Theresa is a busy professional.  One day she receives and opens an official looking package from an attorney or local court. Thankfully, it is not a suit from a present or former client, patient or parishioner. Instead, it is a subpoena seeking to compel her to provide testimony regarding communications with, or documents supplied by, or prepared for a person with whom she has or had a professional relationship (“Client”). The subpoena may have been requested by a party suing or being sued by the Client, the Internal Revenue Service or another governmental agency.

What should Theresa do after she receives a subpoena?

She should resist the urge to destroy any paper or electronic records or communications and should promptly consult with a knowledgeable attorney in her area.

The attorney can initially determine whether it is a valid subpoena and whether the way in which Theresa received the subpoena was proper. State and federal law have different requirements for the issuance and content of subpoenas. There are also differences in civil matters and criminal matters on how subpoenas must be served– particularly for government agencies.

If the subpoena was not properly served…

If Theresa was not served in the proper manner, she is not legally obligated to produce the documents and/or testimony and the attorney can advise her on the next step.

If the subpoena was properly served…

If it is determined that a valid subpoena was properly served, Theresa will need to discuss with her attorney whether the information sought is protected as “privileged communication”. While courts have created certain “privileges” governing when a professional can or should refuse to provide or testify about information received from a client, Congress and many states have also enacted laws governing how the professional must safeguard private information of and communications with clients. This guarded information and communication is known as “privileged communication”.

In Maryland, there is statutory protection to certain communications within a number of professions, including the following:

• Social Workers;
• Accountants;
• Clergy;
• Therapists;
• News Persons/Journalists;
• Psychiatric nursing specialists or professional counselors; and
• Attorneys

Each of the privileges is different in scope. They have specific definitions of what is a privileged communication that generally cannot be disclosed by the professional without the client’s consent. There are also exceptions for what would otherwise be a privileged communication and when the professional can disclose privileged communication without needing the client’s consent.

Subject to the applicable law, Theresa cannot disclose any privileged information without the Client’s consent or a Court order. Among other sanctions, an improper disclosure of privileged information could subject Theresa to a claim from her client or a possible sanction by the licensing agency for her profession.

Hiring an Attorney

A competent attorney can help Theresa determine if what is being sought is privileged and if any exceptions that allow disclosure apply to the matter. The attorney could also address when and how to contact the Client and/or the person who requested the subpoena and whether Theresa needs to file a motion asserting the privilege.

The attorney may suggest that Theresa see whether her professional liability insurer will pay for an attorney to assist her in responding to the subpoena. While a leading professional liability insurer in Maryland will pay for a lawyer to assist an attorney receiving a subpoena, each professional needs to review their policy or contact their agent to see if such a benefit is available to them.

If you have received a subpoena and have questions about it or want to discuss another legal matter, please contact Paul Schwab, Jonathan Azrael or John Solter at Azrael Franz Schwab Lipowitz LLC.

                                               

*The genesis of this article is a recent case in which Paul Schwab represented an accountant subpoenaed by the Internal Revenue Service to testify in a criminal case involving the taxpayer’s personal tax returns. The client prepared the personal returns based on tax information (K-1s) prepared by another accountant that the IRS alleged under reported the businesses’ income. Through Mr. Schwab’s prior communication with the IRS’ attorney, the client’s testimony avoided information covered by the accountant/client privilege.