July 2013 - Secrets in a Google World: Understanding the Differences Between the Attorney-Client Privilege and the Duty of Confidentiality
by Scott B. Garner
What is told into the ear of a man is often heard a hundred miles away. ~ Chinese Proverb
One of our most sacred duties as lawyers is the duty of confidentiality, statutorily described as the duty “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Cal. Bus. & Prof. Code § 6068(e) (2013). But what exactly is a “secret” in this context? According to Webster’s online dictionary, one definition of a secret is “something kept from the knowledge of others or shared only confidentially with a few.” Merriam-Webster.com., http://www.merriam-webster.com/dictionary/secret (last visited May 7, 2013).
In the legal ethics arena, however, a “secret” may be known to many, yet still be considered a secret. This counterintuitive principle often confuses even the most careful lawyers, who may wrongly assume that once a fact loses its secretive status—for example, by appearing on the Internet—he no longer must protect the fact against disclosure.
This confusion may be caused by the common confounding of the attorney-client privilege with the related, but separate, duty of confidentiality. An example might help. Suppose, in the course of a lawyer’s representation of his client, the client tells the lawyer that three years ago the client was arrested for being drunk in public. The lawyer then does a Google search and, indeed, finds a story about the client’s arrest. Is this information subject to the attorney-client privilege? Is it protected by the lawyer’s duty of confidentiality? Suppose the client did not tell the lawyer about his prior arrest, but instead the lawyer found it on his own after running a Google search? Does that change the analysis? The short answer is that, whether the client first told the lawyer about the arrest, or the lawyer first learned the fact on his own, the fact of the prior arrest likely is not protected by the attorney-client privilege. Nonetheless, the lawyer still has an obligation not to disclose this information absent his client’s consent. In other words, despite not being protected by the attorney-client privilege, the information falls within the duty of confidentiality, and the lawyer is ethically obligated to keep it secret.
The Attorney-Client Privilege
Three may keep a secret, if two of them are dead. ~ Benjamin Franklin
The attorney-client privilege in California is a statutorily created evidentiary rule that protects from disclosure “confidential communications” between a lawyer and his client. Cal. Evid. Code § 954 (West 2013); see also Solin v. O’Melveny & Myers, 89 Cal. App. 4th 451, 456-57 (2001). “Confidential communication,” in turn, is defined in the Evidence Code as “information transmitted between a client and his or her lawyer in the course of that relationship and in confidence . . . .” Cal. Evid. Code § 952 (West 2013); see also In re Jordan, 7 Cal. 3d 930, 939-40 (1972). The attorney-client privilege has been described as “a hallmark of Anglo-American jurisprudence for almost 400 years.” Mitchell v. Superior Court, 37 Cal. 3d 591, 599 (1984). “[T]he fundamental purpose behind the privilege is to safeguard the confidential relationship between clients and their attorneys so as to promote full and open discussion of the facts and tactics surrounding individual legal matters.” Id.; see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981).
Notwithstanding the importance of protecting confidential communications between a client and his or her lawyer, there are some important and not insubstantial limits on the application of the attorney-client privilege. For example, to the extent otherwise confidential information is revealed to someone other than the lawyer, the privilege may be waived. See Cal. Evid. Code § 912 (West 2013).1 In In re Jordan, an inmate sent communications to his lawyer, knowing that the mailroom guard was going to read those communications. Because the inmate/client’s communication was “knowingly disclosed to a third person whose presence is not required to advance the client’s interest,” the communications were not protected by the attorney-client privilege. In re Jordan, 7 Cal. 3d at 939-40.
In one of the scenarios of the hypothetical above, the lawyer learns the information about his client from some source other than his client—i.e., from a Google search. Thus, the information about the client’s prior arrest was not transmitted from the client to the lawyer, or vice versa, and thus does not meet the requirements of Evidence Code § 954. Even in the scenario where the client did tell the lawyer about the prior arrest, however, the information still is not protected by the attorney-client privilege because it is not confidential within the meaning of Evidence Code § 952. Accordingly, under either scenario, this publicly available information is not protected by the attorney-client privilege.2 This result should not be a surprise.
What may be surprising to some is that this public information about the client’s prior arrest—while not privileged—still may be considered confidential, thereby precluding the lawyer from disclosing it without the client’s consent. In other words, some things a lawyer learns about his client, even if he learns them from a public source like the Internet, still must be guarded as secrets.
The Duty of Confidentiality
To keep your secret is wisdom; but to expect others to keep it is folly. ~ Samuel Johnson
Authorities both in and out of California repeatedly have held that a lawyer’s duty of confidentiality is broader than his duty under the attorney-client privilege. See Dietz v. Meisenheimer & Herron, 177 Cal. App. 4th 771, 786 (2009) (citing Goldstein v. Lees, 46 Cal. App. 3d 614, 621 (1975)); In re Gonzalez, 773 A.2d 1026, 1031 (D.C. 2001). As stated by the District of Columbia Court of Appeals, the ethical duty to protect client confidences and secrets, “unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge.” In re Gonzalez, 773 A.2d at 1031 (internal quotations and emphasis omitted).
In California, the mandate to keep a client’s confidences is found in the State Bar Act and, thus, has the force not only of legal ethics, but also of California law. Specifically, as quoted above, Business and Professions Code § 6068(e) provides, it is the duty of an attorney “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Rule of Professional Conduct 3-100 incorporates § 6068(e) into a lawyer’s ethical requirements: “A member shall not reveal information protected from disclosure by Business and Professions Code § 6068, subdivision (e)(1) without the informed consent of the client . . . .”
The question then becomes: what are considered the “confidences” and “secrets” of a client? The State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) addressed this question in its Formal Opinion No. 1986-87. That Opinion addressed the hypothetical situation where a criminal defendant disclosed to his lawyer a prior criminal conviction, which was relevant to the sentencing phase of the client’s trial. The conviction, however, was a matter of public record, and thus was not subject to the attorney-client privilege. The Committee stated that the term “secrets” is not defined in the Rules of Professional Conduct, but then noted the definition in the ABA Code of Professional Responsibility (as it then existed), DR 4-101(a): “Information gained in the professional relationships . . . the disclosure [of] which would be embarrassing and would be likely to be detrimental to the client.” The Committee ultimately concluded that the client’s past conviction constituted a client “secret” that could not be disclosed absent client consent.
Courts throughout California similarly have drawn distinctions between a lawyer’s duty to protect attorney-client privileged communications and a lawyer’s duty to keep his client’s secrets. In re Johnson, 2000 Calif. Op. LEXIS 10 (Cal. State Bar Ct. Oct. 26, 2000), for example, has facts similar to those in Formal Opinion No. 1986-87 and the hypothetical above. In that case, the attorney told one of his clients, in the presence of others, about another client’s earlier felony conviction. That conviction, of course, was a matter of public record, but it was not easily discovered. Id. at 28. The court found that the disclosure constituted a violation of the lawyer’s ethical duty to keep his client’s confidences: “This ethical duty of confidentiality is much broader in scope and covers communications that would not be protected under the evidentiary attorney-client privilege. It prohibits an attorney from disclosing facts and even allegations that might cause a client or a former client public embarrassment.” Id. at 29; see also In re Gonzalez, 773 A.2d at 1031 (relying on fact that disclosure of information about the client “might be embarrassing or likely to be detrimental to the client”); Dixon v. State Bar, 32 Cal. 3d 728, 735 (1982) (finding that the lawyer violated Business and Professions Code § 6068(e) by including in a declaration “gratuitous” and “embarrassing” information about his former client and her sister, even though the declaration was filed in response to a lawsuit the former client filed against the lawyer).
California certainly is not alone in making this distinction. Comment 3 to ABA Model Rule 1.6 states, “The confidentiality rule . . . applies not only to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.” ABA Model Rule 1.6, cmt 3 (emphasis added). In Lawyer Disciplinary Board v. McGraw, 194 W. Va. 788 (1995), the West Virginia Supreme Court of Appeals applied its state equivalent of Model Rule 1.6 to find an attorney violated his duty to maintain his client’s confidences. There, the lawyer had disclosed to a third party certain information which, in his defense, the lawyer characterized as public and, thus, not privileged. The court was not impressed. It stated the now-familiar rule that confidentiality of client information “is not nullified by the fact that the circumstances to be disclosed are part of a public record, or that there are other available sources for such information, or by the fact that the lawyer received the same information from other sources.” Id. at 798. The court based its decision on Rule 1.6 and on its observation that “the essence of the attorney-client relationship is that of trust, reliance, and loyalty.” Id. (internal citations omitted). The court also made the point that “[t]he ethical duty of confidentiality protects more than just ‘confidences’ and ‘secrets’ of a client in that Rule 1.6, entitled Confidentiality of Information, prohibits disclosures of ‘information relating to representation of a client[.]’” Id. at 799.
Like the West Virginia court in McGraw, other courts and bar associations have found that the duty to protect a client’s secrets—even if not actually “secret” in the common understanding of that term—arises at least in part from the duty of loyalty. For example, in its 1983 opinion, the Los Angeles County Bar Association concluded that a public defender representing in a high-profile trial an entertainment industry client charged with a felony could not disclose to the media confidential information he had learned about his client, even after the trial was over. Los Angeles County Bar Association Formal Op. No. 409. The Opinion stated, “Both the duty of loyalty and the duty to maintain client confidences remain after termination of the attorney-client relationship.” Id. It further stated that the duty to a former client forbids “use against the former client of any information acquired during such relationship.” Id. (quoting Yorn v. Superior Court, 90 Cal. App. 3d 669, 675 (1979)).
It is clear, then, that a lawyer’s duty to maintain the confidences and secrets of his client requires far more than merely protecting non-public information disclosed to him by the client in private. “Confidences” and “secrets,” as those terms are used in Business and Professions Code § 6068(e) and other equivalent authorities simply do not mean what we generally think they mean. This is particularly important in our Google world, where true secrets are becoming increasingly rare, and most people can learn just about anything with a few strokes on their keyboard. Lawyers, then, must get used to the reality that maintaining a client’s secrets and confidences means not sharing any information about that client that could be embarrassing or harmful to the client, or, even more generally, any information that the client would not want to be shared. The best advice: Don’t talk about your client unless it is to further the goals of your client and/or if you have your client’s consent.
(1) One exception to this waiver rule, expressly stated in Evidence Code § 952, is where the third party “is present to further the interest of the client in the consultation [or] . . . [where disclosure to the third party] is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted . . . .”
(2) Even though the underlying information about the client’s prior arrest is not confidential within the meaning of Evidence Code § 952, where the client communicated the information to the lawyer (as opposed to the lawyer finding it for himself on the Internet), the fact that the client communicated the information to the lawyer itself could be privileged. See Mitchell v. Superior Court, 37 Cal. 3d 591, 600 (1984) (finding that the privilege covers the transmission of documents otherwise available to the public); In re Jordan, 7 Cal. 3d at 580 (finding that lawyer’s transmission to client of a public document constituted a confidential communication under Evidence Code § 952, and therefore was privileged). Of course, just because the fact of the communication is privileged does not necessarily make the underlying information itself privileged.
Scott B. Garner is a partner at Morgan, Lewis & Bockius LLP. His practice focuses on complex business litigation, with an emphasis on attorney liability defense, securities litigation, and other business torts. Garner is co-chair of the OCBA Professionalism and Ethics Committee and a member of the State Bar’s Standing Committee on Professional Responsibility and Conduct. He also serves on the OCBA Board of Directors, and is Secretary of the Orange County Chapter of the Association of Business Trial Lawyers. He may be contacted at email@example.com.