SDCBA Legal Ethics Opinion 2011-1

Reconciling a Lawyer’s Competing Duties of Candor to the Court v. Duty of Confidentiality

QUESTION PRESENTED

May Attorney, under the California Rules of Professional Conduct and the State Bar Act, answer a court’s question asking if she has any idea why her client is not in court, when Attorney is aware of incriminating information that she suspects may explain her client’s absence?

ANSWER

No.  Under the California Rules of Professional Conduct and State Bar Act, Attorney may not answer the court’s question in any fashion; she must respectfully decline to answer, citing her ethical duty of confidentiality.  This is true even though in jurisdictions that follow some version of the ABA Model Rules, the result may be different. 

FACTS

Attorney, a member of the California State Bar, represents Client on a drug charge.  The night before she is scheduled to appear in court with her client, who is out of custody on bond, she receives a call from Client’s mother stating “don’t expect to see Client in court tomorrow morning; he just left the house high as a kite.”  Sure enough, Client doesn’t appear in court.  The judge asks Attorney on the record: “Do you have any idea why your client isn’t here?” Ethically, what if anything can Attorney say?

APPLICABLE LAW AND ETHICAL RULES

This issue can be analyzed through a combination of California Rules of Professional Conduct, the California Evidence Code, the California Business and Professions Code, California Ethics Opinions, and the ABA Model Rules of Professional Conduct.

CONFIDENTIAL COMMUNICATION V. THE DUTY OF CONFIDENTIALITY

Of paramount importance to this opinion is the distinction between confidential communication and the duty of confidentiality.  “Confidential communication between client and lawyer” is defined in Section 952 as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.”

Regarding the duty of confidentiality, the conduct of California lawyers is governed by California Business and Professions Code Section 6068 which enumerates the duties of an attorney.  Section 6068(e)(1) states that one of these duties is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” 

Regarding the scope of Section 6068(e)(1), several California Ethics Opinions provide useful guidance.  California Rule of Professional Conduct 1-100 states that while they are not binding authority, California ethics committee opinions should be consulted by California lawyers “for guidance on proper professional conduct.”1   Cal. State Bar Formal Opinion No. 2003-161 notes that the attorney’s ethical duty of confidentiality under Business and Professions Code section 6068, subdivision (e) is broader than the attorney-client privilege and extends to cover all of the information gained within the scope of the professional relationship that the client has requested be kept secret, or the disclosure of which would likely be harmful or embarrassing to the client. (citing Cal. State Bar Formal Opns. No. 1993-133, 1986-87, 1981-58, and 1976-37; Los Angeles County Bar Association Formal Opns. Nos. 456, 436, and 386. See also In re Jordan (1972) 7 Cal.3d 930, 940-41 [103 Cal.Rptr. 849].)

In this case, the information about the Client revealed by his mother to Attorney, while not covered by the attorney-client privilege, would fall within the scope of confidential information. 

DUTY OF LOYALTY TO THE CLIENT V. CANDOR TO THE COURT

Under the ABA Model Rules, a lawyer’s duty to the client is qualified by the duty of candor to the court (Rule 3.3 Comment [2]).  In California, however, the duty of confidentiality is not qualified by the lawyer’s duty of candor to the court.2 The proposed set of California rules, if adopted, will preserve this distinction.3  While this debate continues, judges and lawyers should be familiar with the distinction, and all of the rules involved. 

California Rule of Professional Conduct 5-200, Trial Conduct, states in pertinent part that: in presenting a matter to a tribunal, a member: “(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth; (B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law.”

Note that the California Rule differentiates between using truthful means of representation, and seeking to mislead the court.  This is an important distinction to make, because as trial lawyers know, it is possible to present technically correct bits of evidence or information, but in a manner that is misleading in context.  It is also possible to violate the duty of candor by omission.  Indeed, ABA Model Rule 3.3 Comment [3] notes that there are circumstances where “failure to make a disclosure is the equivalent of an affirmative misrepresentation.”

California Business and Professions Code Section 6068(d) states that it is the duty of an attorney to “employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”  California Business and Professions Code Section 6106, which discusses actions of moral turpitude which may result in discipline, states that: “The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.”

ABA MODEL RULES

While California has not yet adopted a version of the ABA Model Rules, when California does not have an ethical rule governing a specific issue, courts may look to the ABA for guidance, although they may not consider ABA Rules and Opinions as binding authority.4  Regarding ABA formal opinions, case law holds that while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California.5

ABA Model Rule 3.3 – Candor Toward the Tribunal, states in pertinent part that “A lawyer shall not knowingly make a false statement of fact or law to a tribunal” (Rule 3.3 (a)(1)).   The Rule states in paragraph (b) that a lawyer representing a client “who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.”  Paragraph (c) qualifies the duties in paragraphs (a) and (b), stating in pertinent part that they apply “even if compliance requires disclosure of information otherwise protected by Rule 1.6. [Confidentiality].”

In addition to Rule 3.3, which specifically covers candor in the courtroom, several other Model Rules discuss a lawyer’s duty of candor generally. Model Rule 4.1 – Truthfulness in Statements to Others also covers the duty of candor.  Rule 4.1 states that: In the course of representing a client a lawyer shall not knowingly: “(a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.” (emphasis added).  Note the difference between the references to Rule 1.6 in these respective rules.  Rule 3.3 requires candor to the court take precedence over the duty of confidentiality, while Rule 4.1, truthfulness in statements to others, recognizes the higher importance of the duty of confidentiality. 

Regarding criminal or fraudulent behavior by the client, Rule 4.1 Comment [3] reminds lawyers that “[u]nder Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. Paragraph (b) states a specific application of the principle set forth in Rule 1.2(d) and addresses the situation where a client’s crime or fraud takes the form of a lie or misrepresentation. Ordinarily, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation. Sometimes it may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm an opinion, document, affirmation or the like. In extreme cases, substantive law may require a lawyer to disclose information relating to the representation to avoid being deemed to have assisted the client’s crime or fraud. If the lawyer can avoid assisting a client’s crime or fraud only by disclosing this information, then under paragraph (b) the lawyer is required to do so, unless the disclosure is prohibited by Rule 1.6.” (emphasis added).

Model Rule 8.4, Misconduct, also includes several provisions relating to a lawyer’s duty of candor.  Relevant provisions state that it is professional misconduct for a lawyer to (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, or (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.  

ANALYSIS

Analyzing all of these rules and ethics opinions, we conclude that in California, Attorney is not able to answer the judge’s question either way.  She is not able to be dishonest with the court due to her duty of candor, and she is not at liberty to disclose the information imparted to her by Client’s mother the night before, because even though that information was not relayed to her by her client and therefore is not protected by the attorney-client privilege, it nonetheless constitutes confidential information. 

The more difficult issue is whether Attorney is permitted to say anything at all in response to the court’s question regarding whether she “had any idea why her client was not there.”  If Attorney answers in the negative, she is in violation of her duty of candor to the court per Rule 5-200 and Bus. and Prof. code section 6068(d) because she does have an idea, as relayed by Client’s mother the night before.  If, however, Attorney answers “yes,” she arguably violates her duty of confidentiality under Cal. Bus. and Prof. code section 6068(e) because that answer would cause a harmful inference to be drawn to the detriment of her client, thus violating Attorney’s duty not to reveal client confidential information.  Certainly if there were an exculpatory and unexceptional [see parenthetical note] reason Attorney’s client was not in court, Attorney would be free to reveal that information, because it would not qualify as information “which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client” (Cal. State Bar Formal Op. 1993-133 [citing Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58]). 
Under our facts, Attorney’s only ethical option is to inform the court respectfully that due to applicable ethical rules she is not at liberty to answer the question.6 

This opinion is issued by the San Diego County Bar Association Legal Ethics Committee.  It is advisory only, and not binding upon the courts, the State Bar of California, tribunals charged with regulatory responsibilities, or any member of the State Bar.

1 The Rule also states that “Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered.”

2 See California Business and Professions Code Section 6068(e) and California Rule of Professional Conduct 5-200.

4 See e.g., U.S. v. Sierra Pacific Industries (E.D. Cal. 2010) 2010 WL 4778051, *7.

5 State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656.

6 Cf. In the matter of a Member of the State Bar of Arizona Robert E. Fee (1995) 182 Ariz. 597, 607 (1995) (Censuring plaintiff’s personal injury attorneys who did not disclose to settlement judge separate agreement requiring client to pay attorney’s fees beyond those specified in settlement agreement.  The plaintiff’s attorneys “should have either disclosed the complete [fee] arrangement [with their client] or politely declined any discussion of fees.” )