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.


I Should Have Read the Rules of Professional Conduct …

“You are never going to believe what has happened to me!”  Adam said to Lucy – lawyers who share office space.

Curious, Lucy responded, “Ok, I’ll bite.  What’s going on?”

“I’m being sued for malpractice by someone who was never even a client of mine.  What am I supposed to do?  How can I possibly defend myself?”  Adam lamented.

Trying to be helpful, Lucy asked Adam to explain the circumstances.  Adam began: “For a number of years I have represented a small corporation in a sort of outside general counsel kind of way.  Obviously, I interacted with the various officers of the corporation over the years and provided advice to them regarding the corporation.  It is one of the former officers, Mr. Oliver, who is suing me for malpractice related to his resignation from the corporation, saying I gave him bad advice, but again I was never his lawyer!”

“Ok, ok, settle down, we can figure this out.  Did Mr. Oliver’s complaint explain the basis of his assertion that he had an attorney-client relationship with you?”  Lucy asked.

“No.  He simply asserted there was such a relationship.”  Adam said with disgust.

“Well, did you have a written engagement agreement with Mr. Oliver?” Lucy inquired.

“Again, no, because I was never his lawyer.”  Adam declared; his temper rising.

“That’s potentially helpful.  Do you happen to have a written acknowledgment from him that you were not his lawyer?” asked Lucy.  “What I mean is did you ever have him acknowledge in writing that he understood you are the attorney for the corporation and not for him individually?”

“No.”  Adam said sheepishly.  “I didn’t do that for any of the officers.  Was I supposed to?”

Lucy explained: “No, you were not required to have it in writing, but it could help you now if you had, and would help you establish that you attempted to comply with Rule of Professional Conduct 3-600(D), which requires clarification of the client’s identity when there is an apparent conflict between the corporation’s interests and its officers, etc.  Also, I say ‘could help’ because even if you had such an acknowledgement but then acted inconsistently with it and advised the officer as an individual, then the existence of such an acknowledgement would not help you.  In other words, you could still be considered to have had an attorney-client relationship with the individual officer if you acted contrary to such an acknowledgment.”

“But I never advised Mr. Oliver personally.  I only dealt with him as an officer of the corporation.  How do I defend myself against this?  Couldn’t I just disclose information that establishes the real reason he resigned from the corporation, which has nothing to do with me?”  Adam complained.

Adam was starting to get desperate, so Lucy, realizing she still had to calm Adam down, decided to try to walk him through the options.  “Listen, you can certainly defend yourself by challenging Mr. Oliver’s assertion there was an attorney-client relationship, that’s probably your best option given what you have asserted.  Let’s assume, however, that he can establish or just raise a suspicion that there was such a relationship, you could then be left defending your actions.  For now, let’s put aside the conflicts and issues that would have come about under RPC 3-310 and 3-600 if you were representing both the corporation and Mr. Oliver simultaneously and the steps you would have had to take in that scenario.  We’ll save that for later.

“Getting back to how to defend yourself, you mentioned the possibility of revealing information you learned in the course of your representation of the corporation.  Do you really think you could do that?”  Lucy gently inquired.

“Well, I could if I had the corporation’s consent, right?”  Adam asked feebly.

“That’s true,” Lucy proclaimed trying to embolden Adam, “you could possibly disclose the information with informed consent of the corporation pursuant to RPC 3-100.”  Pushing the issue though, Lucy asked, “What if the corporation refuses to give consent?”

“Aren’t I allowed to disclose client information under Evidence Code section 958?”  Adam said, grasping at straws.

“That section only indicates there is no privilege applied to client communications relevant to a breach of a duty arising out of the attorney-client relationship.  So, it is only applicable to communications between the lawyer and the client who is alleging the breach, here that would be Mr. Oliver.  Therefore, it wouldn’t permit you to disclose communications or confidences related to your attorney-client relationship with the company,” Lucy explained.

“What can I possibly do?” Adam asked, exasperated.

“There’s no easy answer, as you can tell by now.  You could rely on General Dynamics Corp. v. Superior Court (1994) 32 Cal.Rptr.2d 1, and Solin v. O’Melveny & Myers, LLP, et al., (2001) 107 Cal.Rptr.2d 456, and try to dismiss the matter on the ground that client confidences would have to be disclosed in order to defend yourself.  Both cases resulted in dismissals on those grounds so as to prevent the disclosure of client confidences, but they both involved attorney plaintiffs who sought to affirmatively disclose client information to prosecute their cases, so they could be distinguishable.

“You might rely on Anten v. Superior Court (Ct. App. 2015) 183 Cal.Rptr.3d 422, which recently found that communications made between attorney and client during a joint representation are discoverable – and inherently disclosable – in a malpractice action by one of the clients where the other client declined to provide consent and even fought to keep the information from being disclosed.  Even this, however, is not definitively helpful as there are other issues it raises, i.e., if there was a joint representation did you comply with RPCs 3-600(E), 3-310, and 3-100, among others, not to mention the trouble you could be in with your current corporate client or the State Bar if you disclose information without authorization.”

“I can’t believe I am such a predicament.  It seems I should focus on establishing there was no attorney-client relationship between me and Mr. Oliver, and improve my procedures when representing a corporation,” Adam grieved.

“Best of luck Adam.  I’m sorry you have to deal with this, but this has even reinforced for me the need to review the RPCs regularly and to be extra careful when advising officers of a corporate client.”

-- Robert 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.**