Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

An Ethical Nightmare

The most recent State Bar Ethics Opinion, 2015-192, (February 18, 2015) presents a perfect-storm dilemma. What must a lawyer do when she learns two months before trial that her corporate client’s trade secret misappropriation claim lacks probable cause? The CEO refuses to dismiss, even when she tells him she can no longer ethically prosecute the case. He intends to keep it going to damage a competitor’s reputation. Given that standoff, she has to withdraw. Rule 3-700(B)(1) calls for mandatory withdrawal when the lawyer knows, or should, that the client lacks probable cause and is pursuing the matter to harass or maliciously injure someone else. In addition, rule 3-700(B)(2) mandates withdrawal when continued representation will result in a violation of the Rules or the State Bar Act. So, easy call.

But the CEO resists. She files an emergency motion; CEO opposes. Judge wants to know why. Lawyer says “irreconcilable conflict of interest” with my client; “my duty of confidentiality . . . prevents me from saying any more.”

Judge’s solution: a detailed declaration, under seal, about what the client said that makes the lawyer think she has to withdraw, and sets an in camera hearing a week out. Now the fun begins.

Rule 3-100 and Bus. & Prof. Code section 6068(e) are seemingly uncompromising: “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The Opinion emphasizes, just so we are focused that preserving the confidences of a client is one of the most important duties of a lawyer. “No rule in the ethics of the legal profession is better established nor more rigorously enforced than this one.” Wutchumna Water Co. v. Bailey (1932)216 Cal. 564. 572.  

The Opinion cites and quotes a number of cases that say that, absent a well-founded belief that the lawyer cannot be trusted, a judge should accept a lawyer’s statement that an ethical conflict drives the need to withdraw without requiring more. But that does not help; it is not the fact scenario we have.

If ordered to reveal client confidences, must the lawyer obey the court’s order—another ethical mandate (see sections 6068(a) and (b))? Risk contempt? What does “at every peril to himself or herself” really mean in this setting? One concurring appellate opinion said "yes." At a minimum, the lawyer has to seek appellate review of the trial court’s order, by appeal or writ. But what if the trial or even the appeallate court will not stay the order?

What does the Opinion conclude? “Once an attorney has exhausted reasonable avenues of appeal or other further review of such an order, the attorney must evaluate for herself the relevant legal authorities and the particular circumstances, including the potential prejudice to the client, and reach her own conclusion on how to proceed.” The Committee (COPRAC) cannot say whether, faced with this dilemma, a lawyer may or may not disclose client confidences; but it can and does say that whatever the lawyer does, he or she has to take reasonable steps to minimize the impact of the choice on the client.

The Opinion cites and discusses a wealth of out-of-state authority, as well as substantial California authority that no court should put a lawyer in such a position. In that respect it is helpful. Ultimate conclusion. Hope it is only a nightmare, and you wake up, even in a cold sweat.

– Edward J. McIntyre

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**