ETH 2012-183.
Court | California |
California Ethics Opinion
2012.
ETH 2012-183.
THE STATE BAR OF
CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL
RESPONSIBILITY AND CONDUCTFORMAL OPINION INTERIM NO. 2012-1832012ISSUE: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?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.
AUTHORITIES
INTERPRETED:
Rules 1-120, 3-100, and 3-110 of the Rules of Professional
Conduct of the State Bar of California.(fn1)
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.
DISCUSSION
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. and 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").)(fn2)
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 and 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...
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