20.06. Limitation on subpoenas to defense counsel [Rule 3.8(e)]

A prosecutor cannot ethically subpoena a lawyer to a grand jury or other criminal proceeding except when:  (i) the information sought is not protected a privilege (primarily the attorney-client privilege); (ii) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (iii) there is no other feasible way to obtain the information.[1]  This provision was originally included in the rules to address situations where prosecutors in conspiracy (drug or organized crime) cases would subpoena lawyers of defendants where the defendants without an obvious source of legitimate income retained private lawyers.  The prosecutors wanted testimony related to whether the legal fees were being paid out of ill-gotten funds.  Defense lawyers complained that strategy interfered with the attorney-client relationship.  The ABA first responded by requiring court approval to issue a subpoena.  After this requirement was challenged in court (and struck down as interfering with the grand jury process in one court), the ABA adopted the current rule.[2]

[1] ABA Rule 3.8(e)(1) – (3).

[2] Bruce A. Green, “Prosecutorial Ethics in Retrospect,” 30 Georgetown J. of Legal Ethics 461, 471 (2017).