By Timothy Casey
This issue of Ethics in Brief covers an attorney’s duty of confidentiality and a commonly held misconception regarding a “public records” exception to the duty of confidentiality. The misconception may stem from a conflation of the ethical duty of confidentiality with the evidentiary rule about the attorney-client privilege. In sum, there is no public records exception to the duty of confidentiality, although information revealed in a public record may not be privileged.
The duty of confidentiality arises from Business & Professions Code section 6068(e)(1), which mandates the attorney’s duty “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” California Rules of Professional Conduct refer to the standard articulated in the Business and Professions Code. “A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent…” (Rules Prof. Conduct, r. 1.6.) The Comments to the Rules of Professional conduct describe the broad range on information covered by the attorney’s duty of confidentiality. “The principle of lawyer-client confidentiality applies to information a lawyer acquires by virtue of the representation, whatever its source, and encompasses matters communicated in confidence by the client, and therefore protected by the lawyer-client privilege, matters protected by the work product doctrine, and matters protected under ethical standards of confidentiality, all as established in law, rule and policy.” (Rules Prof. Conduct, r. 1.6 cmt. 2 [emphasis added].)
Although California revised the Rules of Professional Conduct effective November of 2018, the duty of confidentiality remains governed by the Business and Professions Code. In contrast to California’s Rules of Professional Conduct, the Model Rules contain numerous exceptions, including “where the disclosure is impliedly authorized” by the nature of the representation, where the disclosure prevents crime or fraud causing financial harm to a third party (where the client has used the services of the attorney), or where the disclosure is in response to a court order. (see, e.g., Model Rules Prof. Conduct, r. 1.6(b)(2), r. 1.6(b)(3), and r. 1.6(b)(5).) California, however, allows for only one exception, where “the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” (Bus. & Prof. Code section 6068(e)(1).) Moreover, before disclosing confidential information a California lawyer must take the additional steps of making a “good faith effort to persuade the client” not to engage in the conduct, and to “inform the client” of the lawyer’s intent to disclose the information. (Bus. & Prof. Code section 6068(e)(2).)
California precedent confirms the strict duty of confidentiality. For example, in the disciplinary proceeding In the Matter of Johnson, (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179, an attorney disclosed to another client information regarding a client’s criminal conviction, information the attorney had acquired through the representation. Even though the criminal record was a public record, the court found a violation of the duty of confidentiality. In another case challenging a Department of Corrections policy of reading prisoner-attorney communications, the Supreme Court upheld the sanctity of the attorney-client privilege. In re Jordan, (1974) 12 Cal.3d 575, 580. Significantly, the Jordan Court rejected the argument that information in the public domain is per se nonconfidential, noting that an attorney’s advice to a client might very well include published information. (Ibid.)(“[A] law review article or a newspaper clipping of potential use to the inmate-client is information of the type properly protected by the privilege.” (Ibid.).)
The privilege may be waived by voluntary disclosure to a third party. (Evid. Code section 912 (Waiver results when “any holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to disclosure made by anyone.” (Ibid.).) Thus publication or disclosure of information will usually result in the waiver of the attorney-client privilege. But the duty of confidentiality is not co-extensive with the privilege.
The California State Bar Committee on Professional Responsibility and Conduct (COPRAC) issued opinion 2016-195 to offer guidance on the issue of confidentiality. “[T]he attorney-client privilege is a statutorily created evidentiary rule that protects from disclosure a ‘confidential communication’ between a lawyer and his or her client.” (COPRAC Formal Opinion 2016-195, citing Evid. Code § 954; Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451, 456-57.) The opinion summarized the distinction as follows: “While the ethical duty of confidentiality applies to information about the client, whatever its source, the attorney-client privilege is expressly limited to confidential communications between a lawyer and his or her client.” COPRAC Opinion 2016-195.[1]
In sum, information acquired by an attorney in the course of a representation should remain confidential, even where that information may be accessible to the public.
[1] Evidence Code section 952 defines “confidential communication between client and lawyer” as “information transmitted between a client and his 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.” (Evid. Code section 952).