Illuminating the Murky Area of Lawyer-to-Lawyer Consultations
LACBA Update, Issue Month/Year Goes Here
By Diane L. Karpman, immediate past chair, LACBA Professional Responsibility & Ethics Committee. Karpman of Karpman & Associates in Los Angeles represents attorneys in disciplinary matters and is an expert consultant and witness on legal ethics issues. The opinions expressed are her own.
Divining our ethical obligations is a collaborative process. How can you collaborate or even discuss a problem without violating the hallowed duties of confidences and secrets articulated in the Business and Professions Code section 6068 (e)? Merely discussing the issue could impair or waive the attorney-client privilege. Recent cases provide some illumination into this murky area of "lawyer to lawyer" consultation.
In Solin v. O’Melveny & Myers 2001 Cal. App. LEXIS 388, a lawyer consulted with the firm on one occasion to obtain advice regarding his fee agreement, his personal exposure to criminal liability arising out of the continued representation, and how to structure his future compensation to avoid fee disputes with his clients. He found the advice to be below the standard of care, resulting in his claim of professional negligence against O’Melveny.
In California, the duty of confidences and secrets "brooks no exception," Fox Searchlight Pictures v. Paladino 2001 Cal. App. LEXIS 377. This duty of confidentiality is substantially broader than the attorney-client privilege. (Evidence Code section 950 et. seq.) The privilege, a "hallmark of Anglo-American jurisprudence," authorizes a client to refuse to disclose, and to prevent others from disclosing, confidential communications between the attorney and the client. In Solin, the clients intervened to block any potential disclosure. Solin asserted that O’Melveny did not "need" to disclose client secrets to defend itself and that aggressive judicial management and protective orders could safeguard client confidences.
O’Melveny was aghast. How could they defend their advice if they could not disclose the "evidentiary details"? And since when do plaintiffs have the right to tell defendants how much or what evidence they can put on in mounting their defense?
A client cannot "turn the shield of confidentiality into a sword" (Fox). O’Melveny would be denied fundamental due process if the transfer of confidences sullied them into poisoned silence, absent any defense. Remember, when a client questions a lawyer’s competency in the civil arena or at the State Bar, the client cannot claim the privilege to bar the lawyer’s defense.
Gosh, it may seem that consulted lawyers are almost immune from liability for malpractice. They can claim the need to disclose client confidences to defend themselves, which in turn will force the court to dismiss the case. However, the court maintained that Solin could have withheld the gory details by employing a "hypothetical scenario." A faux scenario would have allowed him to obtain the advice without impairing client confidences. The American Bar Association’s proposed revisions to Model Rule 1.6 (B)(4) permit a lawyer to "secure legal advice about the lawyers’ compliance with these rules" and seem to sanction the use of a "hypothetical."
Likewise, if a hypothetical was employed, O’Melveny could have defended the claim by asserting that Solin had failed to disclose sufficient information to allow them to competently perform. They could assert that the hypothetical failed to explain the situation in enough detail for them to understand the case.
Geoffrey Hazard once characterized an ethics concept involving fiduciaries as "gooey," something that is both slippery and sticky at the same time. This situation involving "lawyer to lawyer" consultation could also be considered "gooey," but these recent cases reflect greater transparency, like...jelly.