By Richard D. Hendlin
Attorney at Law
Whether a newer or experienced lawyer, it may be appropriate to seek guidance concerning one’s ethical and other obligations to clients. While large law firms increasingly hire their own in-house counsel to provide day-to-day ethics advice (See, Edwards, Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1221, 1224) and lawyers can hire outside ethics counsel, many lawyer’s resort, at least initially, to more informal means of help.
Among available resources is the confidential Ethics Hotline offered by the California State Bar (800-238-4427). Locally, the San Diego County Bar Association offers its own Ethics Hotline staffed by members of the SDCBA Legal Ethics Committee (619-231-0781 x 4145). Neither service provides legal advice to callers, and no attorney-client relationship is formed. When using such resources, questions should be posed as hypotheticals. By referring callers to relevant legal authorities, those staffing the hotlines strive to assist lawyers in reaching informed decisions about their professional responsibility questions.
Because newer attorneys may have grown up with greater familiarity and trust in online chatrooms, listserves, or social media networks, they may be more inclined to use such resources to address ethical quandaries. This tendency is even more likely during the current COVID-19 pandemic, when all lawyers may have fewer opportunities for direct face-to-face communications with other lawyers, fewer, if any, chances to query more experienced attorneys at continuing legal education programs, and even a reduced ability to consult with mentors and other lawyers by telephone.
As a result, lawyers may find themselves increasingly resorting to online sources for guidance. In so doing, both the lawyer posing ethical questions and the one consulted must take care to protect client confidentiality and the attorney-client privilege,[i] and be mindful to avoid creating a conflict of interest with existing clients.
A fundamental principle in the lawyer-client relationship is a lawyer’s duty of confidentiality to a client. (Bus. & Prof. Code §6068(e)(1) [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 [CRPC] Rule 1.6 (a) provides “[a] lawyer shall not reveal information protected from disclosure by Bus. & Prof. Code §6068 (e)(1) unless the client gives informed consent or the disclosure is permitted by the narrow exception of paragraph (b) of this rule [dealing with preventing a criminal act likely to result in death or substantial bodily harm].”][ii]
Client “secrets” mean any information obtained by the lawyer during the professional relationship, or relating to the representation, which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client. (Cal. State Bar Form. Opn. No. 2016-195; Cal. State Bar Formal Opn.1993-133.) [iii]
In order to protect and maintain a client’s confidential information, inquiring lawyers seeking informal guidance from lawyers outside their firm in an online or informal setting should use hypotheticals which employ general, abstract and broad inquiries whenever possible, thereby minimizing the risk that confidential, client-specific information from which the consulted lawyer – or anyone else who has access to the inquiry – might deduce the identity of the client on whose behalf the inquiry is being made. (Tuft, Peck & Mohr, Cal. Prac. Guide: Professional Responsibility (The Rutter Group 2019) §3:81.1[Cal. Prac. Guide]; Tex. Comm. Of Prof’l Ethics, Op. 673, 81 Tex. B.J. 624, 625 (2018)[Available at: https://www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-673]; Robert Derner, Ethical Limitations on Lawyer-to-Lawyer Online Consultations Regarding Pending Cases, 10 St. Mary’s Journal on Legal Malpractice & Ethics 102, 107 (2020)[Derner](Available at: https://commons.stmarytx.edu/lmej/vol10/iss1/8.)
Online lawyer-to-lawyer discussions create a special risk of establishing a permanent record of the consultation, however informal, that remain on the Internet indefinitely. The permanence of this information increases the risk an adverse party or attorney may discover and use the information to harm the client. To protect the client’s interests, the consulting lawyer may wish to obtain assurances from the consulted lawyer that the latter will not engage in a representation adverse to the interests of the consulting lawyer’s client. (See: ABA Formal Opn. 98-411; Derner, supra, at 117.)
“[C]onsulting lawyers who routinely represent the ‘other side’ of your practice area [should be avoided]. If that is not possible, ascertain at the outset whether the consulted lawyer represents a party to the matter. Otherwise, the consulted lawyer may be disqualified from an adverse representation as a result of the consultation.” [Cal. Prac. Guide, supra, §3.81.1.)
Although the act of seeking legal advice concerning ethical obligations owed to a client, by itself, does not create a conflict with the client (Cal. State Bar Form Op. No. 2019-197), both the inquiring lawyer and the consulted lawyer must take care to protect client confidentiality and the attorney-client privilege and take care to avoid creating a conflict of interest with existing clients. (ABA Formal Ethics Opn. No. 98-411 (1998); Illinois State Bar Assn Prof. Conduct Advisory Opn. No. 12-16 (2012).
Where a lawyer consults with other outside lawyers for advice on client matters, an attorney-client relationship is not necessarily created between those lawyers, nor is an attorney-client relationship generally created between the consulted lawyer and the consulting lawyer’s client, although the consulted lawyer might owe a duty of confidentiality to that client. (ABA Form. Opn. 98-411; Cal. Prac. Guide, supra, §3.81.)[iv]
When a lawyer consults another lawyer about matters involving the first lawyer’s current client, ethical questions arise concerning what disclosure, if any, the lawyer must make to the client about that consultation. The duty of communication with clients is set forth in CRPC Rule 1.4 and Business and Professions Code section 6068(m) (duty to inform clients of significant developments in matters relating to the representation.)
Rule 1.4 mandates a lawyer shall “keep the client reasonably informed about significant developments relating to the representation[,]” and “advise the client about any relevant limitation of the lawyer’s conduct when the lawyer know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.” (CRPC Rule 1.4 (a)(3) and (4).)
The duty of loyalty is reflected in CRPC Rule 1.7, as well as by case law and common law. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 548 (referencing common law duty of loyalty); Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086; Cal. State Bar Form. Opn. No. 2019-197.)
CRPC rule 1.7(b) concerning conflict of interest states, in part, “A lawyer shall not, without informed written consent from each affected client and compliance with paragraph (d), represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited . . . by the lawyer’s own interests.”
The American Bar Association [ABA] has opined that a lawyer who seeks legal advice regarding ethical obligations owed to a client did not create a conflict of interest with that client where the lawyer is seeking prophylactic advice to assist in her representation of the client, as there was no significant risk that the lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the client would be materially limited by the lawyer’s interest in avoiding ethical misconduct. (ABA Formal Opn. No. 08-453, p. 3.)
Relying on the ABA’s opinion, the California State Bar Standing Committee on Professional Responsibility and Conduct [COPRAC] found a lawyer’s consultation with either outside counsel or firm in-house counsel does not create a conflict of interest under Rule 1.7(b). (Cal. State Bar Form. Opn. No. 2019-197, p.5)
COPRAC also opined that the lawyer and client “have a shared interest in ensuring” the lawyer meets his professional obligations; and that with regard to the duty to communicate under Rule 1.4 (a)(3), the lawyer did not need to reveal to the client the fact that the lawyer had sought legal advice concerning his ethical obligations because it “would not normally constitute a “significant development.” (Cal. State Bar Form. Opn. No. 2019-197, p. 7, (following New York State Bar Association Opn. No 789 (2005) p. 3)
Nevertheless, once a lawyer concludes he or she has committed an error and the client has a possible claim against the lawyer, there is a potential conflict that triggers a duty to disclose and to seek informed written consent to continue the representation under the conflicts rules. (Cal. State Bar Form. Opn. No. 2019-197, p. 11.)
The duty of communication includes disclosing to clients material facts potentially giving rise to any legal malpractice claim against the lawyer, since such an error is a “significant development relating to the representation.” (Beal Bank, SSB v. Arter & Hadden, LLP (2007) 42 Cal.4th 503, 514; Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214, 1234; Cal. State Bar Formal Opn. 2019-197.) Note, however, that a lawyer is not permitted to provide legal advice to the client on the merits of any such claim since to do so would be providing legal advice on an issue on which the lawyer’s interest in avoiding liability would squarely conflict with the client’s in violation of CRPC Rule 1.7. (Cal. State Bar Form. Opn. 2019-197; Colorado Formal Ethics Opn. No. 113; North Carolina 2015 Formal Ethics Opn., No. 4, p.3.)
**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.**
[i] The attorney-client privilege is a statutorily created evidentiary rule that protects from disclosure a “confidential communication” between a lawyer and his or her client. (Cal. Evid. Code § 954; see also Solin v. O’Melveny & Myers (2001) 89 Cal.App.4th 451, 456-57.) For purposes of the attorney-client privilege, a “confidential communication” is defined in the Evidence Code to be “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence. . . .” (Cal. Evid. Code § 952; see also In re Jordan (1972) 7 Cal.3d 930, 939.) 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. Thus, “client secrets” covers a broader category of information than do confidential attorney-client communications; confidential communications are merely a subset of what are considered client secrets. (Cal. State Bar. Form Opn. 2016-195.)
[ii] Comment [2] to CRPC Rule 1.6 states: “The principle of client-lawyer 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. (See In The Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rprt. 179; Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621.”
[iii] Although not binding, opinions of ethics committees in California should be consulted by members for guidance on proper professional conduct. Ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered. (California Rules of Professional Conduct rule 1.0, Comment [4].)
[iv] In contrast, “hiring another lawyer as a “consultant” to give advice regarding a particular client matter may create an attorney-client relationship between the consultant and the hiring lawyer and/or the hiring lawyers’ client. (See ABA Form. Opn. 97-407; Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, 806” (Cal Prac. Guide 3:81.)