November 2017

Casual Conversations, Ethical Minefields

By Jennifer Gilman

Frantz Law Group

This article was originally featured as the "Ethics in Brief" column in This Week at the Bar on July 31, 2017. 

Bob and Jane met at a former job — he was a paralegal and she was his supervising attorney. They remained friends after Jane left the firm, and they have lunch or dinner a few times a year when scheduling gymnastics in their respective calendars allow them to do so. 

They got together just the other day and strolled down memory lane, rehashing old times … unearthing key pieces of evidence only hours before a crucial motion was due to be filed; chasing witnesses all over southern California for their signatures on essential declarations; handling a potential client whose theories of liability against the President of the United States, the Governor, the Mayor, and several prominent local businessmen were substantially more conspiracy theory than legal reasoning. 

“Lorenzo Azzecca-Garbugli how could we forget him?” Bob exclaimed in his deep, booming register, which was amplified by the volume-enhancing acoustics in the restaurant (and perhaps also by a couple of glasses of Pinot Gris). “C’mon, Jane remember? Azzecca-Garbugli was crazy he started collecting all kinds of evidence he said his Imelda Marcos shoes and the dust in his vacuum cleaner could prove that he was harmed!”

Jane no longer works at the firm where Bob works, but she nonetheless still owes a duty of confidentiality to Mr. Azzecca-Garbugli pursuant to California Rule of Professional Conduct 3-100 and Business and Professions Code section 6068(e)(1). As a paralegal, Bob also owes a duty of confidentiality to the client. Pursuant to Business and Professions Code section 6453, paralegals are subject to the same duties that Business and Professions Code section 6068(e) imposes on lawyers: to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. The duty of confidentiality was imposed upon them the minute Mr. Azzecca-Garbugli came into the office and sat down as a prospective client. It lasts after the lawyer-client relationship ends (Oasis West Realty, LLC v. Goldman (2013) 51 Cal. 4th 811, 822-23; City and County of San Francisco v. Cobra Solutions, Inc. (2008) 38 Cal. 4th 839). It very likely lasts forever.

The duty of confidentiality arguably exceeds the scope of the attorney-client privilege set out under California Evidence Code section 954. Client confidences include information that may cause the client or former client embarrassment or harm. Chubb & Son v. Superior Court (2014) 228 Cal.App.4th 1094; C.O.P.R.A.C. Op. 2016-195; C.O.P.R.A.C. Op. 1993-133.  The attorney-client privilege is limited to confidential communications between a lawyer and the client, whereas the ethical duty of confidentiality applies to information about the client, whatever its source.  See C.O.P.R.A.C. Op. 2016-195. Embarrassing or detrimental information must be protected as a client secret. Id

What started out as a night on the town and a little bit of gossip between friends ended up being a far more harmful interaction. The information projected across a restaurant for anyone present to hear was embarrassing to Lorenzo. Further, the state of his mental health or his deep-seeded belief in conspiracy theories would be harmful if, say, his case were widely-publicized in newspapers and on the news, as many of that firm’s cases are. 

Casual conversations like these happen every day. It is incumbent upon us, as professionals, to be wary and be vigilant and to safeguard confidential information, even in the most relaxed of atmospheres. Ethics do not take the night off, even when we do. 

**No portion of this article 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.**