argument to support respondents' objections. Because "[b]lanket
assertions of attorney-client privilege in response to a subpoena
duces tecum are strongly disfavored," In re Grand Jury Witness,
695 F.2d at 362, the respondents' blanket assertion of privilege
must be rejected.
This ruling does not mean that there is no case in which
disclosure of the combination of a client's name and a problem
code would reveal a client's "motive" for seeking representation,
within the meaning of the cases. This ruling is not intended to
foreclose specific claims of privilege as to individual clients.
B. ABA and State Professional Responsibility Rules
Respondents argue next that they are forbidden by applicable
rules of ethics to turn over client names. LSNY asserts that
Disciplinary Rule 4-101 of the New York Code of Professional
Responsibility forbids them to disclose client names (and renders
the subpoena unlawful) and argues that Rule 4-104's directive not
to disclose client "secrets" protects a broader range of
information than the attorney-client privilege.*fn5 LSNY also
asserts that Rule 1.6 of the ABA Model Rules independently bars
the requested disclosure.*fn6 LAB does not rely on Maryland
professional responsibility rules, but resists disclosure under
Model Rule 1.6.
The question presented by these arguments is whether the
congressional mandate for audits of LSC grantees trumps the
general provision of the LSC Act that LSC shall not "interfere
with any attorney in carrying out his professional
responsibilities to his client as established by the [ethical
guidelines] of the [ABA] . . . or abrogate . . . the authority of
a State or other jurisdiction to enforce the standards of
professional responsibility generally applicable to attorneys in
such jurisdiction." 42 U.S.C. § 2996e(b)(3).
An apparently complete answer to that question is found in the
plain language of section 509(h) of the 1996 Omnibus
Appropriations Act, which provides: "Notwithstanding section
1006(b)(3) of the Legal Services Corporation Act
[42 U.S.C. § 2996e(b)(3)] . . . financial records, time records, retainer
agreements, client trust fund and eligibility records, and
client names for each recipient shall be made available to
any auditor or monitor of the recipient, including any . . .
agency that is auditing or monitoring the activities of the
Corporation or of the recipient." P.L. 134-104, April 26, 1996,
110 Stat. 1321 (emphasis added).
Respondents submit, however, that a plain language application
of section 509(h) is too facile. Because problem codes have
already been turned over to LSC OIG, they argue, a client name is
now more than a client name and indeed has mutated into a
"secret" that an attorney cannot reveal without running afoul of
her ethical obligations. Congress did mandate the disclosure of
names (the argument goes), but it did not require the disclosure
Let us assume for the sake of argument that, in New York at
least, client names problem codes = secrets. Respondents'
argument must nevertheless be rejected. Respondents have
presented no evidence, in the form of legislative history or
that Congress intended its reference to "client names" to depend
Indeed, I find the language of section 509(h) unambiguous, so
that legislative history on either side could not change the
statute's clear requirement that LSC grantees make available
client names to any duly authorized auditor or monitor. That
requirement not only expressly supersedes the broad undertaking
of section 1006(b)(3) of the Legal Services Act, but — in New
York and Maryland, and under ABA standards — it is the legal
reason why a lawyer required to disclose client names under
subpoena will not have run afoul of her ethical obligations.
See DR 4-101(C)(2) (New York) (allowing a lawyer to reveal
confidences and secrets when the disclosure is required by law or
court order); MR 1.6(b)(4) (Maryland) (same); ABA Model Rule 1.6,
cmt. 27 ("lawyer may be obligated or permitted by other
provisions of law to give information about a client").
C. Reasonableness of the Subpoenas
Respondents' next argument is that LSC OIG's insistence upon
the disclosure of full client names is unreasonable, because
their offer to provide independently verifiable identifiers would
suffice to meet LSC OIG's needs without invading the
They have a point. LSNY has submitted two declarations,
unrefuted on this record, establishing that unique client
identifiers could be generated by computer from preexisting
databases, without any person seeking the actual client names,
and listed alongside associated case numbers cheaply, quickly and
accurately. LAB has represented, without refutation on the
record, that a code for client names based on a Soundex algorithm
"is actually a more accurate identifier than a name is." Oral
Arg.Tr. at 47. The use of unique client identifiers would appear
to be less problematic, and even more cost-effective, than LSC
OIG's "Chinese Wall."
However, "an administrative subpoena must be enforced if the
information sought `is within the authority of the agency, the
demand is not too indefinite and the information sought is
reasonably relevant.'" RTC v. Walde, 18 F.3d 943, 946 (D.C.Cir.
1994) (quoting United States v. Morton Salt Co., 338 U.S. 632,
652, 70 S.Ct. 357, 94 L.Ed. 401 (1950)). Respondents do not
argue, nor could they, that client names are not reasonably
relevant to a congressionally-mandated assessment of LSC
recipients' case statistics. Their argument, instead, is that
there is a better way for LSC to collect the data it needs.
It is not the province of this court to decide the best way for
LSC OIG to carry out its responsibilities. As Americans now have
ample reason to know, there is no legal requirement that the
power to investigate be tempered by wisdom or restraint. LSC's
refusal to accept unique client identifiers in lieu of full
client names may be clumsy and unnecessary, but I cannot say that
it is unreasonable.
ORDERED that the petition for summary enforcement [# 1] is