Legal Ethics Corner

Ethics Corner 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.

 This is the first in a four part series on the duty of confidentiality. 

Just How Broad is an Attorney’s Duty of Confidentiality Anyway? 
Quite broad, actually. The touchstone authority of any attorney’s duty of confidentiality is Business and Professions Code § 6068(e)(1): “It is the duty of an attorney to do all of the following: […]  To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Complimenting this is Rule of Prof. Conduct 3-100(A) (Confidential Information of a Client): “A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client….” (The provision in paragraph (B), allowing for the disclosure of a criminal act likely to result in death or substantial bodily harm, is beyond the scope of the present piece.)
One key aspect of the duty of confidentiality is that it is not co-extensive with the attorney-client privilege; it is much broader:

In the context of Business and Professions Code section 6068, subdivision (e), “secrets” is not limited to attorney-client communications. “This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge.” Any “information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client” is a secret which must be preserved. (California State Bar Formal Opn. No. 1981-58; internal Citations omitted; see also Cal. State Bar Formal Opn. Nos. 1980-52 and 1993-133 [“Hence, the attorney's duty to maintain client confidences and secrets inviolate is broader in scope than the attorney-client privilege.” ];Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621, fn. 5.)
That a client might have previously filed for bankruptcy, recorded a certain deed, was sued for fraud (regardless of whether proven), or incorporated a certain corporation are all be matters of public record but might well all be considered client confidences. Naturally, many kinds of non-public information will also be confidential. The appropriate default mindset of an attorney is that all information learned about a client, regardless of its source, is to be kept confidential until such time as its disclosure is compelled by law (e.g., discovery requests to which no objection applies) or until its disclosure is helpful to the client and the client has approved of the same prior to disclosure.
Unfortunately, at times attorneys get to chit-chatting about their cases and their clients, perhaps over a drink or dinner. However, this can raise serious concerns. While consulting with other counsel for the actual benefit of the client is permissible so long as one is sensitive to confidentiality and conflict of interest concerns, the natural human desire to share with others, e.g., “the crazy situation my client is in,” is something to which attorneys must not succumb.  
On a daily basis the practitioner must ask himself/herself, “Am I taking adequate steps to protect my client’s information, regardless of whether it falls within the scope of the narrower attorney-client privilege?” This question is the subject of the next three pieces in Ethics Corner.

--Luis E. Ventura

**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.**