by Jennifer R. Bagosy
As California lawyers, although we may do our best to follow the applicable ethical rules, we still face situations in which there may not be a clear right or wrong choice. This article provides a brief look at four such ethics issues that tend to elicit misconceptions about the proper course of action, and could result in disqualification or discipline by the State Bar.
I Can’t Look at an Inadvertently Produced Privileged Document?
Imagine that your litigation opponent has just produced 10,000 documents. As you review them, you notice an email from opposing counsel to his client titled Key Weaknesses in Our Damages Case. Assuming there is no protective order with a clawback provision in force, should you keep reading in hopes of learning vital information to use at trial? After all, attorneys do owe a duty of loyalty to their clients. See, e.g., Flatt v. Superior Court, 9 Cal. 4th 275, 284 (1994). You might be inclined to think that you should read the document, and use it to advance your client’s interests.
According to the California Supreme Court, you may not use—or even read—this document. In Rico v. Mitsubishi Motors Corp., 42 Cal. 4th 807 (2007), defendants’ counsel inadvertently produced notes summarizing conversations between defense counsel and defense experts. The notes were clearly attorney work-product, yet plaintiffs’ counsel used them during a deposition of a defense expert. The California Supreme Court disqualified plaintiffs’ counsel, finding that he acted unethically. See also, Clark v. Superior Court, 196 Cal. App. 4th 37 (2011) (disqualification was proper where employee gave his counsel privileged, potentially stolen, documents belonging to his employer; employee’s counsel acknowledged he had read them).
Therefore, under California law, the moment you realize that you are looking at a privileged document or attorney work-product, you must stop reading. Attorneys receiving such documents should “refrain from examining the materials any more than is essential to ascertain if the materials are privileged, and shall immediately notify the sender . . . .” Rico, 42 Cal. 4th at 817 (internal citations omitted). If there is any dispute—for instance, you ceased reading due to Rico but are not convinced the document is privileged, or you believe the crime-fraud exception may apply—you should attempt to reach a resolution with opposing counsel. If you cannot agree, you may ask the court to assist in resolving the dispute. Id.
In short, an attorney who chooses to review and use inadvertently produced privileged documents in California risks almost certain disqualification, and possible disciplinary action. Moreover, doing so violates the attorney’s obligation “to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” Id. at 818 (quoting Kirsch v. Duryea, 21 Cal. 3d 303, 309 (1978)).
I Have to Tell My Client I Might Have Committed Malpractice?
Maybe you missed a critical filing deadline. Maybe you accidentally emailed a corporate client’s confidential information to a friend, who then posted it to her anti-corporate blog. The moment you realize your mistake, you frantically begin thinking of ways to “fix” it, or at least to alleviate any harm to your client. You may be able to convince the court to let you file your pleadings despite missing the deadline. You may be able to convince your friend to remove the information from her site, and then hope that no one of importance saw it and no lawsuits against your client will result.
However, even if you believe your solution is likely to resolve the problem—thus making a claim for malpractice unlikely—you still must tell your client what happened. California Business & Professions Code sec. 6068(m) (West 2004) requires attorneys to “keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.” Facts that may give rise to a client’s malpractice claim are “significant developments” that must be disclosed to the client. See Committee on Professional Responsibility and Conduct Formal Opinion No. 2009-178; Beal Bank, SSB v. Arter & Hadden, LLP, 42 Cal. 4th 503, 514 (2007).
Moreover, every attorney owes a fiduciary duty to his or her client, which requires, among other things, disclosure of “all facts which materially affect [the client’s] rights and interests.” Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 188-189 (1971). See also Beal Bank, 42 Cal. 4th at 514. This duty of disclosure exists because a client “may not recognize the negligence of the professional when he sees it” and “often will lack any opportunity to see it.” Neel, 6 Cal. 3d at 188. Moreover, as a result of the attorney’s fiduciary duty to disclose information to the client, “the disclosure must be full and complete, and any material concealment or misrepresentation will amount to fraud.” Id. at 189 (quoting Pashley v. Pacific Elec. Railroad Corp., 25 Cal. 2d 226, 235 (1944)).
Consequently, while the law does not require you to use the word “malpractice” in your disclosure to the client, you should at a minimum describe the facts surrounding the mistake, the potential consequences to the client’s case or interests, and any possible solutions.
I Can’t Tell Anyone My Client Is About to Pull an “Enron”?
You are aware that your client is about to engage in nefarious economic conduct that will cause thousands of people to lose their jobs and their pensions. Are you permitted to report them to the authorities? While the ethical rules in other states may allow you to do so, in California, the answer is an unequivocal no.
In California, the ethical duty of confidentiality is of paramount importance. Under California Rules of Professional Conduct Rule 3-100, attorneys may not reveal client confidential information (as defined by Cal. Bus. & Prof. Code sec. 6068(e)(1)), without client consent. The only exception is that an attorney may—but does not have to—disclose confidences if necessary to prevent a crime that will cause substantial bodily harm to an individual. California Rules of Professional Conduct Rule 3-100(B), (E). While other states have extended corresponding rules to allow disclosure to prevent substantial financial harm (often called the “Enron exception”), California recognizes no such exception to the duty of confidentiality.
I Cannot “Friend” an Adverse Party on Facebook Under an Assumed Name, Even if the Party Is Unrepresented?
California Rules of Professional Conduct Rule 2-100, which is sometimes called the “no-contact” rule, precludes an attorney from “communicat[ing] directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter,” absent the other lawyer’s consent. A “party” includes, for example, current employees of a company that is a litigation adversary. Cal. Rules of Prof. Conduct Rule 2-100(B). See also San Diego County Bar Association Legal Ethics Opinion 2011-2, available at www.sdcba.org/index.cfm?pg=LEC2011-2.
However, what if the party has no lawyer? What if you also happen to know that he indiscriminately accepts “friend” requests on Facebook from people he does not know personally? It would be easy to create an assumed identity, friend the adverse party, and learn information that probably ought to remain private but for his decision to share with friends, acquaintances, and some complete strangers.
Such conduct would violate an attorney’s ethical obligations and could lead to disbarment. California Business & Professions Code Section 6068(d) states that an attorney has the duty “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth…,” while Section 6016 provides that “[t]he commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.”
In fact, “friending” an adverse party under a fictitious name in order to learn information that could be used against her in litigation could very well lead to criminal liability. Under California law, “[e]very attorney” who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party,” is guilty of a misdemeanor. Cal. Bus. & Prof. Code sec. 6128(A). Moreover, California has criminal statutes governing online conduct, one of which provides that it is a misdemeanor to “knowingly and without consent credibly impersonate another actual person . . . on [the] Internet . . . for purposes of harming, intimidating, threatening, or defrauding another person.” California Penal Code § 528.5 (West 2011).
So… Should I Take More Ethics CLE?
As California attorneys, we all should take advantage of ethics education opportunities to avoid suffering penalties for not knowing the rules. If you see an interesting ethics seminar in your area, take the time to go. Take a moment to read articles or emails with ethics-related case alerts. While lunch meetings and emails will not make us experts, each bit of information will make us better able to avoid legal ethics pitfalls.
Jennifer R. Bagosy is an associate attorney with Morgan, Lewis & Bockius LLP. She focuses her practice on general commercial litigation and has experience in professional liability litigation. Jennifer may be contacted at email@example.com.