Confidentiality, Collaboration, and Lawyer Angst
LACBA Update, February 2002
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.
Determining the answer to ethical riddles, which seem to happen on a daily basis, is a collaborative process. You may think that the ironclad duty of confidentiality binds you to a silent state of loneliness like some form of psychotherapy. However, recent cases and experience indicate that this is untrue. Ethics analysis doesn’t occur in a void. For convenience’s sake, we will term the profound need to share ethical issues as "lawyer angst."
As lawyers, you are mindful of the fundamental duty of confidentiality. Learning to never discuss client secrets — anywhere, anytime, with anyone — and still trying to obtain answers to the questions causing sleepless nights is "all about sharing." Clearly, you can disgorge angst to co-workers, superiors, and staff, since all are bound by the same duty of confidentiality (Business and Professions Code section 6068 (e)). That duty requires that the member maintain inviolate the confidences and secrets of the client. Everyone employed at the firm has identical ethical obligations, but it’s the lawyer who will ultimately be responsible for any outbreaks or epidemics, either in the civil arena for malpractice or at the State Bar. Angst may also be reposed on an anonymous basis to the State Bar Ethics Hotline. There are even groups and organizations that actually feed on lawyer angst.
For example, the Los Angeles County Bar Association Professional Responsibility and Ethics Committee, with fifty members, loves and revels in your angst and solicits it year round. Depending on certain factors, it may even issue a formal opinion to guide others suffering from the same or similar angst. Its finely crafted opinions can be found here. A wealth of information is available at your finger tips. For angst to rise to the level of an opinion, it may not involve a pending matter, something in litigation or a case on appeal. Particularly attractive for the Committee is broad spectrum angst, plaguing many members of the legal community simultaneously.
Remember, you can only share limited narrowly defined angst and not the whole kitchen sink. For example, if everything about the client has bothered you from day one, that type of detail-rich angst cannot be shared, especially during an "informal consultation with a colleague or a law professor." Fox Searchlight Pictures v. Paladino (2001) 89 Cal. App. 4th 294.
However, if it involves a troubling aspect of the case, transaction, modification or merger, and it conflicts with an expressed corporate protocol, governmental regulation, tax law or even an ethics rule, then you may be in a true quagmire. You may be evaluating the possibility of litigation against your client, the need for self defense or defense at the State Bar. In those circumstances, it is prudent to share first. Recently, in considering potential litigation against the corporate employer by in-house counsel, the Court stated that lawyers "faced with these ethical questions should not be required to fend for themselves based on their own research and what they can remember from a State Bar ethics program." (Fox Searchlight) That position is supported by American Bar Association Model Rule 1.6 (b)(2), which maintains that an angst-burdened lawyer may narrowly reveal confidences "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client ... ."
Fox maintains that if you are disclosing to your lawyer in a formal attorney-client relationship, then the consulted lawyer is bound by the same duty that flows from you. Although not recommended, imagine what would happen in the world of law if everyone shared their angst with each other. Nothing would ever get resolved because no one would be able to talk. All lips would be sealed, and "law" would grind to a stop. Remember, just because you are a lawyer doesn’t mean you can never be a client.
Lawyers get into trouble with the State Bar when the angst overflows and they go off like loose cannons, never looking for ethics opinions, seeking a colleague’s opinion or searching for the answer to that particularly troubling question. Practicing law is about collaboration, not isolation. You cannot perceive the endless ramifications alone, and you cannot answer your own questions because then you would be talking to yourself, and that could become a real problem.