Formal Opinion No. 2012-183
California Ethics Opinions
ISSUE: May an attorney disclose client confidences to her own attorney to evaluate a wrongful discharge action against her former firm and, in pursuing her claim, may she or her attorney publicly disclose those client confidences?
THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
DIGEST: While an attorney may disclose client confidences to her own attorney to evaluate a potential wrongful discharge claim against her former firm, neither she nor her attorney may publicly disclose those confidences except in the narrowest of circumstances.
INTERPRETED: Rules 1-120, 3-100, and 3-110 of the Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6068, subdivision (e)(1) and (e)(2).
STATEMENT OF FACTS
Senior Associate engages Attorney to represent her in a potential wrongful discharge action against her former Firm. If litigation ensues, embarrassing confidential information about at least one Firm client might need to become public because the information is inextricably bound to the core of Senior Associate’s wrongful discharge claim. Attorney believes Senior Associate has a valid claim, but both are concerned that pursuit of such a claim could lead to violations of their professional responsibilities with respect to confidential information of the Firm’s clients and may not be permissible.
1. Senior Associate’s duty of confidentiality to Firm’s client does not bar her right to seek legal advice.
Senior Associate has a duty of confidentiality to her former clients. (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”); rule 3-100(A) (“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, or as provided in paragraph (B) of this rule”).)
The duty of confidentiality continues even after termination of the attorney-client relationship. The term “client, ” as used in both section 6068(e) and the attorney-client privilege (see Evid. Code, §§ 950, et seq
.), applies to both present and former clients. (See, e.g., Wutchumna Water Co. v. Bailey
(1932) 216 Cal. 564, 571 [15 P.2d 505] (attorney’s lips are sealed forever, notwithstanding client’s discharge of lawyer); David Welch Co. v. Erskine & Tully
(1988) 203 Cal.App.3d 884, 890 [250 Cal.Rptr. 339]; Commercial Standard Title Co. v. Sup. Ct. (Smith
) (1979) 92 Cal.App.3d 934, 945 [155 Cal.Rptr. 393] (duty owed to present and former clients); see also rule 3-310(E).) As a consequence, Senior Associate must guard against disclosure of client confidential information unless otherwise permitted by law.
Does this duty, however, prevent Senior Associate from seeking legal advice from Attorney and in doing so, disclosing to Attorney client confidential information?
Notwithstanding section 6068(e)(1) and rule 3-100(A), case law would permit Senior Associate to disclose confidential information both about the Firm and the Firm’s client to Attorney to obtain legal advice about her rights against the Firm. (See Fox Searchlight Pictures, Inc. v. Paladino
(2001) 89 Cal.App.4th 294, 308-315 [106 Cal.Rptr.2d 906].)
In Fox Searchlight
, the court held that a former in-house counsel could disclose to her attorney all facts relevant to her termination, including employer confidences and privileged communications, in order to seek advice about, and to prosecute, a wrongful termination lawsuit against her former employer-client. Id
. at p. 308. The court, however, added this caveat:
In the present case we are not faced with, and do not decide, whether the former in-house counsel or her attorney can be held liable to the employer for the public disclosure of those confidences and communications. Id. (emphasis added).
The Fox Searchlight
court reasoned that the California Supreme Court in General Dynamics v. Superior Court
(1994) 7 Cal.4th 1164 [32 Cal.Rptr.2d 1] contemplated that, in a wrongful termination case, a limited disclosure of employer-client confidences to the plaintiff’s own attorney is necessary. In addition, Fox Searchlight
recognized that the attorneys for the in-house counsel were themselves bound by the rules of confidentiality and attorney-client privilege and, thus, disclosure to them would not be a public
disclosure. Fox Searchlight, supra,
89 Cal.App.4th at p. 311.
The Fox Searchlight
court also focused on the practical result of such consultation. Given the warnings in General Dynamics
about public disclosure...