When uncertain about the privilege status of information requested by a subpoena, what should a counselor do?

When uncertain about the privilege status of information requested by a subpoena, what should a counselor do?

• A. Consult with an attorney who represents the counselor or his or her employer.
• B. Disclose the information to the court immediately.
• C. Seek guidance from a colleague.
• D. Wait for the subpoena to be reviewed by a judge before acting.

Answer: (A)

When a subpoena raises questions about privilege, the key move is to get legal guidance from the attorney who represents the counselor or the employer. An attorney can evaluate whether the information requested is protected by privilege, determine the proper scope of disclosure, and implement steps to safeguard confidential communications—such as filing protective orders or negotiating limits with the court. This helps ensure that only non-privileged material is produced and that privilege is not unintentionally waived. Disclosing information to the court right away can compromise or extinguish privilege, since once information is handed over without proper legal protection, it may no longer be privileged. Turning to a colleague for guidance does not provide the legal authority or protection needed to navigate privilege issues. Waiting for a judge to review the subpoena before acting can lead to unnecessary or irreversible disclosure and delays; the appropriate response is to involve counsel first to manage the process properly and ethically.

When a subpoena raises questions about privilege, the key move is to get legal guidance from the attorney who represents the counselor or the employer. An attorney can evaluate whether the information requested is protected by privilege, determine the proper scope of disclosure, and implement steps to safeguard confidential communications—such as filing protective orders or negotiating limits with the court. This helps ensure that only non-privileged material is produced and that privilege is not unintentionally waived.

Disclosing information to the court right away can compromise or extinguish privilege, since once information is handed over without proper legal protection, it may no longer be privileged. Turning to a colleague for guidance does not provide the legal authority or protection needed to navigate privilege issues. Waiting for a judge to review the subpoena before acting can lead to unnecessary or irreversible disclosure and delays; the appropriate response is to involve counsel first to manage the process properly and ethically.