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.

Maintaining the Cone of Silence: How Far Do We Have to Go?

The duty of an attorney to protect a client’s confidences is of paramount concern in California.  Our Supreme Court has explained that “[n]o 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 duty has been articulated in our Rules of Professional Conduct, specifically Rule 3-100(A).  Even our legislature has commanded that an attorney is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  Business and Professions Code § 6068(e)(1).  The lengths to which an attorney must go, however, to maintain a client’s confidences have been the subject of some debate.  Recent guidance issued by the State Bar of California’s Standing Committee on Professional Responsibility and Conduct (“COPRAC”) and the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (“ABA Committee”) shed some light on the obligations of an attorney to maintain the cone of silence.

COPRAC Formal Opinion 2015-192 addressed the issue in the context of an attorney who was obligated to withdraw from representing her client, in compliance with Rule 3-700(B)(1), after she learned the client’s case lacked probable cause and the client’s primary purpose of pursuing the case was to harass or injure another party.  The client would not consent to withdrawal so the attorney filed a motion to withdraw based upon ethical considerations.  At the hearing she explained there was an irreconcilable conflict with the client that required her to withdraw.  When asked for details from the court the attorney explained her duty of confidentiality to the client precluded her from revealing the details of the ethical considerations.  The court then ordered her to file a detailed declaration under seal and to attend an in camera hearing.  The attorney was left to decide whether to violate her duty to maintain her client’s confidences or to violate the court’s order.

Not even COPRAC would opine on how to resolve it.  Rather, COPRAC’s advice was that an attorney “has a duty to take all reasonable steps to avoid the dilemma.”  Put another way, an attorney “must exhaust all reasonable efforts before concluding that the only options remaining are disclosing confidential information or disobeying a court order.”

Some efforts mentioned by COPRAC included (1) obtaining consent from the client to the in camera disclosure; (2) filing a writ petition challenging the court’s order; (3) asking the court to appoint a judge pro tem or transfer the withdrawal motion to another judge (to avoid prejudice to the client if disclosure ultimately is made).  It is important to note that even if an attorney does “exhaust all reasonable efforts” any disclosure of client confidences will not be excused.  That is, the disclosure still would be a violation of the ethical and legal duty to maintain a client’s confidences.  COPRAC’s opinion simply wants attorneys in CA to be mindful of the issues implicated and to go to all lengths to avoid the dilemma before having to choose one violation or another – not exactly comfortable guidance.

The ABA Committee, conversely, does provide protection for an attorney faced with the same sort of dilemma.  Its Formal Opinion 473 explains that ABA Model Rule 1.6(b) “permits but does not require a lawyer to disclose information relating to the representation of a client.”  In fact, if an attorney facing the dilemma of disclosing confidential information or disobeying a court order were subject solely to the ABA Model Rules, that attorney would find herself freed from the dilemma.  The dilemma would not arise because ABA Model Rule 1.6(b)(6) specifically permits disclosure of information that is reasonably believed to be necessary “to comply with other law or a court order.”

To be sure, the ABA Committee expects an attorney to protect the client’s information, to consider what protective measures should be taken under the circumstances, and to take those measures.  However, if the attorney does take such reasonable steps to protect client information and is still faced with a court order to make a disclosure, the attorney will not be considered in violation of the ethical rules in light of ABA Model Rule 1.6(b)(6) and Formal Opinion 473.

In sum, COPRAC’s identification of the dilemma, while thorough and worth reading in full, offers no relief for an attorney who finds herself between Scylla and Charybdis – in this scenario, having to choose between violating a client’s confidences or a court’s order and then potentially facing ethical charges for making either choice.  On the other hand, the ABA Committee demonstrates there is a system that would permit attorneys to avoid such dilemmas while striving to maintain a client’s confidences.  Unless such a system is adopted in California, however, attorneys here must be mindful of their obligations and ensure they take all reasonable steps to avoid the dilemma in the first place.

-- Robert G. Marasco 

**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.**