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.

“Confidentially speaking …”

“Now don’t tell me anything covered by the attorney-client privilege,” the prosecutor warned.

“Of course not,” intoned the witness. “I’m a lawyer. I know better.”

“Fine. What did your former client do—not anything he said—when you showed him the document?”

“Well … looked like a kid caught with his hand in the cookie jar.”

The judge nodded, made a note. Defense lawyer sat rigid. Prosecutor smiled. The jury ate it up.

And the duty of confidentiality—at the core of our duty of loyalty—lay in a heap on the courtroom floor. Why?

Not because anyone acted with evil intent. Rather, because no one in the room, neither lawyer nor judge, focused on—perhaps even understood—the vast difference between the attorney-client privilege and the lawyer’s duty of confidentiality to his former client.

Our State Bar Act mandates that a lawyer shall: “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets of his or her client. “ [Emphasis added.] (Bus. & Prof. Code § 6068(e)(1); see also Rule 3-100) The mandate permits only the most-narrow exception: to prevent a criminal act that will result in the death of, or substantial bodily harm to, another person. (Section (e)(2))

California has the strictest confidentiality obligation in the nation; far stricter than that found in the other 50 jurisdictions adopting some form of ABA Model Rule 1.6. Regrettably, some California lawyers conflate their duty of confidentiality with the attorney-client privilege—at times as different as chalk and cheese.

The Attorney-Client Privilege

The attorney-client privilege is a statutorily-created, evidentiary rule that protects from disclosure a “confidential communication” between a lawyer and client in connection with seeking or giving legal advice. The privilege is expressly limited to confidential communications; it has several exceptions; and is subject to implied waiver.

The Duty of Confidentiality

The scope of the duty of confidentiality is “broader than the attorney-client privilege.” (Dietz v. Meisenheimer & Herron (2009) 177 Cal.App.4th 771, 786 (4th Dist., Div.1). Client confidences and secrets mean any information—not just communications—a lawyer obtains during the professional relationship, or that relates to the representation, which the client has requested be kept inviolate, or the disclosure of which might be embarrassing or detrimental to the client (Chubb & Son v. Superior Court (2014) 228 Cal.App.4th 1094; Cal. State Bar Formal Opn. Nos. 2016-195; 1993-133). The source of the information does not matter; the duty includes all such information about the client, whatever its source.

Thus, the duty applies to virtually everything a lawyer knows about a client or the client’s matter regardless of the source of the information—even if the information is a matter of public record. (In the Matter of Johnson, (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, 189 (lawyer disciplined for disclosing a client’s former conviction, a matter of public record.) See also Cal. State Formal Opn. Nos. 2016-195; 2004-165; 2003-161; 1996-146; 1993-133; 1976-37—the duty of confidentiality applies to facts in the public record or where there is also a source for the information independent of the client or the lawyer received the information from a non-client or in some other way.) The scope of this duty is not new; yet, at times, poorly understood.

In addition, the duty lasts long after the lawyer-client relationship has ended. (Oasis West Realty, LLC v. Goldman (2013) 51 Cal.4th 811, 822-23.) Likely forever.

Could a sudden, untoward gesture fall within the scope of California’s confidentiality obligation? Is looking like “a kid caught with his hand in the cookie jar” information? About the client? That might be embarrassing, or detrimental? The questions answer themselves.

So when can a California lawyer disclose that kind of information? Almost never. Other than the murder/mayhem exception in section 6068(e)(2), a California lawyer can disclose client confidential information or secrets only with the client’s informed consent (Rule 3-100(A). Neither waiver, including implied waiver, nor anything else, absolves us from our duty of confidentiality—not what we think we need in a declaration to withdraw from a sticky case; not even the spotlight of sitting on a witness stand.

-- Edward 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.**