So You Think If It's Public It's OK?
By Diane Karpman
Legal ethics expert Diane Karpman (http://www.karpman.com/) can be reached at 310‑887‑3900 or at firstname.lastname@example.org. Ms. Karpman is a State Bar -certified specialist in legal malpractice who is frequently employed in risk management for law firms in addition to assisting in State Bar matters. The opinions this article expresses are her own.
Recently in ethics land, there was a furor about a tweet by Harvard Law Professor Laurence Tribe in which he disclosed that in 1996 Donald Trump phoned him about legal advice. One media commentator said that lawyers, even pedagogues (fancy word for teacher), should not make those disclosures.
Tribe said he was trying to determine if the inquiry was privileged. This presents a great opportunity to revisit Ethics 101. Remember that clients and others give lawyers information and, absent a waiver, it is almost always confidential.[i] The duty of confidentiality is broader than what is protected as attorney-client privilege under the California Evidence Code.[ii] This idea is so fundamental that in retrospect maybe Tribe (also a pedagogue) was putting the ethics world on.
For the purpose of clarity, we are considering California rules and codes. Long ago, I suggested that if Tony Soprano really wanted a truly confidential lawyer, he should hire one from California, because we have the strongest confidentiality obligations in the nation.
Privilege is created by statute. It requires a tribunal and an attempt to compel disclosure. Thus, Tribe’s gratuitous comment was not an issue of privilege, but rather it seemed he was just contributing his two cents to the ongoing Trump conversation. Then Tribe rethought the issue and, in an attempt to backpedal, commented that Trump consulted with lawyers all the time so his predilection for consultation was widely known. Tribe was suggesting that such information was publicly known and therefore disclosure or republication is somehow permissible.
This demonstrates a commonly held legal profession misconception that if information is publicly known, a lawyer cannot be engaging in misconduct by again disclosing that information. This prior approval, in the minds of many California lawyers, applies to any pleading, and just about anything else they want to disclose in a comment to the media or an article on the Internet. Let’s get this straight. This public records exception does not exist in California.
In a terrific recent Opinion by the State Bar Standing Committee on Professional Responsibility and Conduct,[iii] many of these concepts are considered and completely closed out. The opinion discusses In the Matter of Johnson.[iv] In that case, a lawyer disclosed information about a client that was part of the public record, but not easily discovered. The State Bar Court found that this disclosure violated the lawyer’s duty of confidentiality. Note that this duty lasts forever. For example, when the late Robert Kardashian served as a collaborating source for a book about his involvement with the legal team in the O.J. Simpson murder case, eyebrows were raised because there are no tell-all books in California.
Importantly, confidentiality encompasses anything a lawyer has learned about the client that could embarrass or be detrimental to the client from any source. That means that in terms of social media, for example, after a successful trial you cannot tweet about it in detail to your followers, or blog about your victory in a family law matter with just enough information that could lead another to figure out the client.
In terms of client embarrassment, which, again, is prohibited, Dixon v. State Bar[v] provides a vivid example. A client was being harassed by her lawyer and filed a suit to enjoin the lawyer’s conduct. To respond to the client’s action, the lawyer filed a declaration explaining in salacious detail that the client’s sister had an affair with the client’s spouse. Obviously, this would embarrass the client and the lawyer was justifiably subject to discipline for the disclosure which had nothing to do with the issue of the lawyer’s harassment.
The identity of a client generally is not deemed to be privileged, but it can be. Some maintain that client identity can be privileged or confidential if knowledge could lead to civil or criminal liability or if knowledge could result in embarrassment to the client. If a well-known lawyer only represents kleptomaniacs and TMZ reports that Winona Ryder has contacted him, she might be subject to embarrassment. Similarly, if another lawyer is a pioneer in the medical marijuana industry and the Wall Street Journal reports that 7-Eleven stores has contacted and retained the lawyer for assistance in their Colorado and Oregon locations, that knowledge does not create civil or criminal liability because the lawyer specializes, but certain inferences can be drawn from the contact.
Remember that this duty of confidentially applies to all client information. Caution is advised in responding to a negative client rating on Yelp, Google, or Avvo, even if your response does not precisely disclose client information but could reasonably lead to the discovery of such information by another party. Our Professional Responsibility and Ethics Committee provides an excellent opinion[vi] on how limited our responses must be.
An interesting issue is raised by law firms that boldly proclaim they represent the biggest Widget manufacturer in the world or the famous Behemoth Computers, Inc. According to widely respected authorities, that information cannot be disclosed absent client consent. According to an out-of-state opinion,[vii] the consent can be obtained as part of the initial engagement agreement. It is probably a good idea in California that the consent was more clearly brought to the attention of the client than hidden in an initial retainer agreement. Behemoth might be stunned to find out that their lawyer is touting their defense in a huge SEC investigation which they fail to disclose in their form 10-Q.
These are difficult and thorny questions, which is why it is probably a good idea to decline to disclose anything absent clear and concise client consent.
[i] Bus. & Prof. Code §6068(e).
[ii] Evid. Code §§ 952, 954.
[iii] Cal. State Bar Op. 2016-195.
[iv] (Rev. Dept. 2000) (4 Cal. State Bar Ct. Rptr. 179.
[v] 32 Cal. 3d 728 (1982).
[vi] LA County Bar Op. 519 (2007).
[vii] NY State Bar Op. 1088 (2016).