Concept
Subpoenas to Lawyers
Prosecutors and other government lawyers
Subpoenas to Lawyers
Rule 3.8(e) limits a prosecutor's power to call a lawyer as a witness about the lawyer's own client. A subpoena is a court-backed order to testify or to produce documents, and a grand jury is the body that hears evidence in secret to decide whether criminal charges should be brought. Under the rule, a prosecutor in a criminal case shall "not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes" that certain conditions are met.1 There are three, and all three must hold: the information is not privileged, the evidence is essential, and no other feasible alternative exists for obtaining it.2 Paragraph (d), covered above, governs what the prosecutor must hand to the defense. Paragraph (e) governs how far the prosecutor may reach into the defense camp.
Two interests pull against each other here. The attorney-client privilege, which shields confidential communications made to obtain legal advice, depends on clients speaking candidly, and a client who knows the government can summon the lawyer as a witness has reason to hold back facts the lawyer needs. Yet lawyers have no general immunity from the investigative and evidentiary processes.3 In one In re Grand Jury Subpoena decision, the court denied a lawyer's motion to quash (that is, to cancel) the subpoena because the government made a prima facie showing that the legal advice was given in furtherance of illegal or fraudulent activity. The client had used offshore banks and corporations to hide money in a mail fraud scheme.4 Advice enlisted to carry out a fraud is not the kind of confidence the privilege exists to shelter.
The rule accommodates both interests. It leaves subpoenas to lawyers available but makes them a last resort, and the prosecutor must justify each one with a reasoned belief.5 No judge reviews the subpoena beforehand, because the ABA deleted an earlier requirement of prior judicial approval (the history appears under Federal Prosecutors and Preemption below). The prosecutor's own belief is therefore the only check at the moment of issuance.6 The standard is reasonable belief, judged by what the prosecutor knew when the subpoena issued. It does not ask whether the belief later proves right.
The next three subsections take the conditions in order. The last turns to the objection federal prosecutors have raised to being bound by a state-adopted version of the rule.
No Privilege Protection
The first condition requires the prosecutor to reasonably believe that "the information sought is not protected from disclosure by any applicable privilege."7 A privilege keeps confidential communications out of evidence even when they are relevant. The text covers any applicable privilege, but a subpoena to a lawyer about a client puts the attorney-client privilege at the center. Because all three conditions must be met, a prosecutor who cannot form this belief need not weigh the other two.
This condition comes first because it guards against what the subpoena threatens most directly. Advice about how to answer an accusation of past conduct lies at the core of the privilege, and a subpoena aimed at that advice fails the condition.
The mail fraud subpoena shows the other side of the line. In the In re Grand Jury Subpoena decision described above, the government's prima facie showing that the advice furthered illegal or fraudulent activity defeated the motion to quash.8 That result reflects an exception to the attorney-client privilege, often called the crime-fraud exception, for advice that helps carry out a crime or fraud. The rule leaves such a subpoena available. It directs a prosecutor not to compel a lawyer to disclose client information unless the information sought is likely to fall within an exception to the privilege, and lawyers have no general immunity from investigative and evidentiary processes.9 What separates the assault subpoena from the fraud subpoena is what the advice was for. In the first it concerned defending past conduct, and in the second it served ongoing concealment.
Because the text sets the standard at what the prosecutor reasonably believes, the condition cuts two ways. The prosecutor need not prove that no privilege applies, win a ruling beforehand, or be proved right afterward. The court in the grand jury decision tested the subpoena against a prima facie showing after the lawyer moved to quash, while the rule asks only for a reasoned basis before the subpoena issues. But the belief must rest on something concrete. A bare hope that the lawyer will not assert the privilege, or an inference drawn only from the fact that the lawyer represents a suspect, gives no reasonable ground. A prosecutor who forms a reasonable belief from the client's own records, and who later learns that a court finds part of the testimony privileged, has still met the condition, because the rule evaluates the decision as it was made.
Exam stems often tempt students to treat the lawyer's role as the answer. A stem that describes a criminal defense lawyer, or a client who is the target of an investigation, has not yet said whether an exception applies. The facts to look for show what the advice was for: advice furthering a crime or fraud supports the prosecutor's belief, and advice about defending past conduct does not. This is also only the first of three conditions, so a prosecutor who satisfies it must still show that the evidence is essential and that no feasible alternative exists.
Essential Evidence
The second condition requires the prosecutor to reasonably believe that "the evidence sought is essential to the successful completion of an ongoing investigation or prosecution."11 Essential is a demanding word. Evidence that would make a case easier, tidier, or more persuasive is useful, and the rule asks for more. The prosecutor must be able to say what the investigation or prosecution would lack if the lawyer never testified, and a prosecutor who cannot name a gap that only the lawyer can fill has no ground for calling the evidence essential.
The demand reflects what a lawyer subpoena costs. Calling a lawyer to testify about a client intrudes on the attorney-client relationship, and a client who watches the government summon lawyers as routine witnesses has reason to hold back from the lawyer. The first condition leaves the subpoena available where no privilege protects the information, so real need must match the cost of the intrusion. With no judge reviewing the subpoena in advance, the word "essential" is the measure the prosecutor's own belief must meet.12 A weaker standard such as "helpful" or "relevant" would allow tactical subpoenas, in which a defense lawyer is called because the call is convenient or because the disruption pressures the defense.
The weakest case under this condition is a subpoena that seeks only to confirm what other evidence already establishes.
The condition is met where the lawyer's testimony fills a gap that nothing else can.
The difference between the two scenes is what the testimony adds. In the wire fraud case it adds weight to a point already proved, and in the deed case it supplies a point that would otherwise go unproved. Corroborative testimony, however convenient, is the kind the rule withholds from a lawyer subpoena.
The standard is still the prosecutor's reasonable belief. The prosecutor need not prove that the case would collapse without the testimony, and a later ruling that the case could have succeeded anyway does not by itself make the earlier belief unreasonable. The belief must nonetheless rest on an actual assessment of the other evidence in hand when the subpoena issues, because a prosecutor who has not taken stock of the existing proof has no basis for a belief about what the case lacks.
This condition overlaps with the next without duplicating it. Essentiality concerns how much the case needs the evidence, while the third condition concerns whether some other practical route to the evidence exists. On an exam, a stem that calls the testimony helpful, says it would strengthen the case, or says it would confirm what others will testify describes evidence that is not essential, and the subpoena fails at this step.
No Feasible Alternative
The third condition requires the prosecutor to reasonably believe that "there is no other feasible alternative to obtain the information."14 An alternative is feasible when it is reasonably available in practice, so the prosecutor must look at the other routes to the same facts and conclude, on a reasoned basis, that none of them will work. The condition differs from the second. Essentiality asks how much the case needs the evidence, and this condition asks how many roads lead to it. Evidence can be essential and still obtainable elsewhere, in which case the second condition is met and the third fails.
The alternatives the rule has in mind are concrete. The prosecutor may be able to issue a subpoena directly to the client, or to obtain a warrant to search the client's premises, and either route reaches the information at its source without enlisting the lawyer.15 Much of what the lawyer holds came from the client, as documents supplied and facts related, so the client and the client's own records are the primary sources and the lawyer's file is a secondary copy. A prosecutor who goes to the lawyer first has chosen the route that costs the attorney-client relationship the most. The condition therefore makes the lawyer a last resort, approached only after the other routes have been tried or reasonably judged closed. The first two conditions would not catch this situation, because evidence can be unprivileged and essential and still sit in the client's own files.
A stem that supports the subpoena will say what became of the other routes.
The standard remains reasonable belief, so the prosecutor need not try every conceivable alternative or prove that none exists. What the prosecutor cannot do is skip the inquiry. A prosecutor who never asked whether the client could be served, or whether the documents could be seized from the client's premises, has no belief for a court to find reasonable, and the same is true of one who relies on a single closed door while another stands open. In the second scene, the client's absence alone would not have supported the belief, because the search of the premises remained available until it was carried out and failed. A stem saying that the lawyer holds the records, or that going to the lawyer would be quicker, describes convenience, which the third condition does not recognize. The facts that satisfy it describe what happened to the other routes: the client could not be reached, the search came up empty, and no other witness knew.
The conditions screen for different things. Privilege asks whether the information may be compelled at all, essentiality asks how much the case needs it, and the third condition asks whether the lawyer is the only road to it. A subpoena can pass two screens and still fail the third.
Federal Prosecutors and Preemption
Federal prosecutors have objected to Rule 3.8(e) ever since the ABA first adopted a version of it in 1990. They argue that a professional disciplinary rule controlling the discretion to issue subpoenas invades the federal courts' authority to define the scope of federal privileges and violates the independence of the grand jury and the secrecy of its proceedings.18 Both objections track the structure of the rule. The first condition asks the prosecutor to form a belief about privilege, but in a federal proceeding the federal courts decide which privileges exist and how far they reach, so a state-adopted rule looks like a second voice on the same question. A grand jury hears evidence in secret and follows its inquiry where the evidence leads, and a disciplinary standard that a prosecutor must satisfy before calling a particular witness places an outside condition between the grand jury and the evidence it wants.
The objection first succeeded against a more intrusive version of the rule, which required a prosecutor to obtain prior judicial approval before subpoenaing a lawyer. Two federal courts of appeals disapproved applying that requirement to federal prosecutors, and the ABA deleted it from Model Rule 3.8 in 1995.19 Advance approval put a judge in the position of deciding, before the grand jury heard anything, whether a lawyer could be called, which is the strongest form of the independence objection. The amendment removed the feature that drew the sharpest federal resistance and kept the substantive limits. The three conditions survive as beliefs the prosecutor holds when the subpoena issues, and the prosecutor remains the one who decides.
A further difficulty lies in how a state rule reaches a federal lawyer at all. Professional responsibility standards ordinarily take effect as court rules adopted by a state's highest court. Under the Citizen's Protection Act, known as the McDade Amendment, federal government lawyers, prosecutors included, are subject both to the standards of the federal district court and to the state laws governing attorneys in each state where they carry out their duties.20 That statute is why a state rule can discipline a federal prosecutor, and it frames the legal question when the federal government resists. The question is one of preemption, meaning whether federal law displaces a state rule that would otherwise apply. Here it becomes whether the McDade Amendment is a clear enough instruction to carry a state's subpoena restrictions into a federal grand jury.
The Tenth Circuit confronted that question in a divided decision, United States v. Supreme Court of New Mexico. The federal government there challenged a state rule of professional conduct that restricted a prosecutor's discretion to subpoena an attorney for evidence about a past or present client and that included no requirement of prior judicial approval. The court held the rule enforceable against federal prosecutors in criminal proceedings generally, but preempted by federal law as to federal prosecutors' issuance of attorney subpoenas in the grand jury context.21
The majority's reasoning had a constitutional link and a statutory link. On the constitutional side, it relied on Supreme Court decisions construing the Grand Jury Clause of the Fifth Amendment, which instruct that federal grand juries can carry out their investigative role only if there are no more than minimal limitations on the kinds of evidence they may consider. A state rule that restrains subpoenas for evidence held by lawyers presses directly on that function.22 On the statutory side, the court acknowledged that the McDade Amendment holds federal lawyers to the ethics rules of the state where they practice, yet it said that it was compelled to insist that Congress speak more clearly before placing a significant burden on the grand jury's constitutionally authorized investigative functions.23 A general direction that federal lawyers follow state ethics law applies across every kind of federal proceeding. A court asked to read that direction as reaching a function the Constitution itself authorizes will look for a more specific instruction before concluding that Congress meant to subject the grand jury to a state's disciplinary limits.
The decision therefore draws its line by setting, so an answer about a federal prosecutor's lawyer subpoena should begin by asking where the subpoena was issued.
Two cautions keep the holding from being overread. It is one circuit's ruling, and a divided one, and because the judicial response to these objections has been mixed, an answer should attribute the result to the Tenth Circuit and carry it no further. The ruling also preempts the state rule only for attorney subpoenas in the grand jury context. In criminal proceedings generally, the rule remained enforceable against federal prosecutors. An answer that treats federal prosecutors as exempt from the rule overstates the decision, and an answer that treats them as fully bound before a grand jury ignores it.