Attorney Self-Defense and the Duty of Confidentiality
By David L. Brandon, member, LACBA Professional Responsibility and Ethics Committee. Brandon is a partner at Morris Polich & Purdy LLP. He has also served as an adjunct professor of appellate law at Loyola Law School. The opinions expressed are his own.
Guidance from new LACBA ethics opinion
LACBA Update, May 2007
We all know that we have an ethical responsibility to keep our clients’ confidences. We also all know that a client’s confidential communications with us are protected from disclosure under the attorney-client privilege. And we all know that if a client sues us, we can disclose the client’s confidential communications to the extent that they relate to the issues in the lawsuit.
But what if the lawsuit against us is filed by someone other than the client? For example, an attorney who prepares an opinion letter for a corporation is sued not by the corporate client but by third parties who relied on the opinion and invested in the corporation.1 Or an attorney who represents a client in litigation is sued by the adverse party, perhaps for abuse of process or malicious prosecution. What then? What if the only way for the attorney to secure victory in the third-party lawsuit is by disclosing confidential information about the client, including the substance of confidential communications? Can that information be disclosed? Can the attorney disclose the attorney’s own work product as proof of the attorney’s good faith? Can the attorney seek the client’s consent to disclose this information? These questions are the subject of the Los Angeles County Bar Association’s latest ethics opinion, Opinion 519.2
The opinion starts by recognizing a basic concept: The “attorney’s duty to maintain client confidences is fundamental to the profession.”3 In this context, it is important to remember that the duty to maintain confidences is absolute: An attorney has a duty “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”4 It is also important to recognize that the duty to maintain client confidences is broader than the attorney-client privilege. The attorney-client privilege only protects confidential communications between attorney and client, while the duty of confidentiality protects any confidential information obtained about the client from any source.5 This duty is so broad that it even encompasses the attorney’s work product to the extent that it contains confidential information.6
The opinion then notes that there are very few circumstances in which an attorney is permitted to disclose a client’s confidences without the client’s informed consent. One such circumstance is the well-known provision in the Evidence Code that permits an attorney to disclose attorney-client communications in a dispute with a client or former client.7 That section permits an attorney to disclose a client confidence but only if the confidence is “relevant to an issue of breach...of a duty arising out of the lawyer-client relationship.” But, as the opinion notes, this section does not permit an attorney to disclose all client confidences just because the attorney and client are involved in litigation. Rather, the Evidence Code simply permits the attorney to disclose those client confidences that are relevant to the issues in the litigation with the client. Other confidences may not be disclosed. And the opinion notes that the attorney can only make that disclosure within the context of the litigation with the client; the attorney is not permitted to disclose such information to the world at large.
In addition, the opinion notes there is no authority in California that holds an attorney can disclose confidential information simply because the information would aid in the defense of a lawsuit by a third party. Thus, in light of the fact that the Evidence Code does not authorize a general disclosure of confidential information even when the attorney is sued by a client, and in light of the fact that there is no authority holding an attorney may disclose a client confidence in defense of a third-party lawsuit, the opinion concludes that any attorney may not on the attorney’s own initiative disclose such information even if it is vital to the defense of the third-party lawsuit.
There are some rays of light, however. First, although the absence of controlling authority authorizing such disclosure compels the conclusion that such disclosure is improper under the current state of the law, the opinion notes that this same absence of controlling authority permits an attorney to make a good faith argument that such an exception should exist. If such an argument were to be accepted by a court, the opinion notes that an attorney could then ethically disclose the confidences pursuant to such a court order.
Second, an attorney can disclose client confidences after obtaining the informed consent of the client. The opinion cautions, however, that an attorney should tread with caution when seeking this authority from the client. There may be an inherent conflict of interest in seeking such permission. While the client’s agreement to the disclosure may greatly benefit the attorney, such disclosure may not be in the client’s best interests because the disclosure may expose the client to criminal or civil charges, or simply be embarrassing to the client.
The opinion concludes that in the presence of such a potential conflict between the interests of the attorney and the client, the attorney should obtain the client’s informed written consent to the disclosure. This would require that the attorney disclose to the client in writing the nature of the conflict, its potential adverse effects, and the client’s right to seek independent legal advice.8 In addition, the attorney should explain to the client the precise scope of the waiver that the attorney is seeking, including which information may be disclosed and the forum in which the disclosure will occur.
The preservation of a client’s confidences is one of an attorney’s most sacred duties. This opinion provides valuable guidance to attorneys who seek to disclose those confidences.
1 See, e.g., Goodman v. Kennedy (1976) 18 Cal.3d 335.
2 The full text of Opinion No. 519 was published in the April 2007 issue of Los Angeles Lawyer
3 Bus. & Prof. Code §6068(e)(1); Cal. Rules of Prof’l Conduct R. 3-100(A).
4 Bus. & Prof. Code §6068(e)(1).
5 In the Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179; Goldstein v. Lees (1975) 46 Cal.3d 614, 621; Evid. Code §952.
6 Cal. Rules of Prof’l Conduct R. 3-100, Discussion ¶2.
7 Evid. Code §958.
8 See, e.g., Rules 3-300 and 3-400 of the California Rules of Professional Conduct.