Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
|
What ethical obligations exist when client confidences may be disclosed or are disclosed by a secretary/nonattorney employee?
Attorneys must take steps to insure that secretaries and other nonattorney employees understand their obligation not to disclose client confidences or secrets. Failure to guard against such disclosures may result in professional liability and the requirement to disclose to the client and withdraw from employment.
Rules 2-111 and 6-101 of the Rules of Professional Conduct.
American Bar Association Code of Professional Responsibility, Disciplinary Rules 4-101(D) and 6-101(A)(3).
Business and Professions Code section 6068, subdivision (e).
The Committee has been asked what ethical problems or obligations are present in the following circumstances: Attorneys Red and Blue each rent space in a suite owned by Attorney White. A secretary employed by Attorney Blue is frequently used by Attorney Red, who pays Attorney Blue for the secretarial services. In the course of the secretary's special employment, the secretary divulges to Attorney Blue information regarding a competitive bid on property prepared for Attorneys Red and White. It is not clear how harmful the disclosure was but the information was presumably confidential. Apparently there was no plan or effort on the part of Attorney Blue to procure this information; rather, the disclosure could be described as unintended or accidental.
The inquirer asks: (1) What preventive steps are any of the attorneys ethically required to take to minimize the risk of such disclosures? (2) Is notice to the clients and withdrawal as counsel ethically required?
A primary obligation in the attorney-client relationship is the duty to preserve the confidences and secrets of one's client. This obligation is mandated by California Business and Professions Code section 6068, subdivision (e), and canon 4 of the American Bar Association Code of Professional Responsibility. Disciplinary Rule 4-101(D) specifically extends this duty by requiring that the attorney "exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, ..." More generally, the California Rules of Professional Conduct state that a lawyer "shall not wilfully or habitually fail to use reasonable diligence and his best judgment in the exercise of his skill... to accomplish ... the purpose for which he is employed." (Rule 6-101, Rules Prof. Conduct.)
The hypothetical situation presented indicates that all the attorneys were under an obligation to prevent the stated disclosure by the secretary. A situation where a secretary is shared contains the potential for harm to clients, even though it may be economically necessary or desirable. Accordingly, because of the benefits of this arrangement to all of the attorneys, they each have a duty to preserve the confidences of the respective clients; they act at their peril and should be prepared to withdraw in the event of leaks resulting from this arrangement. Blue, having hired the secretary, should define explicitly what obligations exist with respect to confidentiality and employment by other lawyers. Similarly, attorneys Red and White should have discussed this issue with the secretary and with Blue prior to hiring the secretary to prepare the bid.
Taking such precautionary steps can be analogized to the circumstances of a lawyer using the services of an outside professional service, e.g., a computerized accounting firm, as part of the rendering of legal services. Particularly when such a firm may handle other law firms or serve clients represented by other attorneys, care must be taken to prevent disclosure of confidences. As stated in informal opinion No. 1127 (1970) of the Committee on Ethics and Professional Responsibility of the American Bar Association:
"The key is that whoever it is that is handling the material, whether or not he is a formal employee of the law firm or an employee of a contractual agent of the law firm, must preserve the confidence of the client, and in each instance, of course, there is some risk.
Therefore, so long as the arrangements are made that the material be kept in confidence . . . we can see no violation of the Canons of Ethics."
(See also opn. No. 1971-25 of this Committee and ABA Committee on Ethics and Prof. Responsibility, informal opn. No. 1364 (1976) [may not be mandatory to notify client in advance before giving client information to data processing firm for bookkeeping] and ABA Committee on Ethics and Prof. Responsibility, informal opn. No. 1235 [use of common library and clerical facilities may impose a burden to assure that disclosures not made]; cf. Philadelphia Bar Assn. Comm. on Prof. Guidance, opn. No. 17 (1948) [two lawyers having same suite should avoid representation of parties having actual adverse interests].)
Assuming a failure to take precautionary steps and the subsequent disclosure about the bid, the attorneys have an obligation to investigate and ascertain the extent of the disclosure. Assuming further that the effect of disclosure was harmful to Red and White's client, all the attorneys were obligated to advise their respective clients of the "leak" but not the details thereof. No ethical obligation exists with respect to notifying the seller of the property, as he is not a client of any of the attorneys.
In this instance, an apparent violation of rule 6-101 of the Rules of Professional Conduct is present. Further, the attorneys may have acted incompetently by "neglecting a legal matter entrusted to [them]." (ABA Code of Prof. Responsibility, DR 6-101(A)(3).) A member of the State Bar cannot attempt to limit his liability for personal malpractice (rule 6-102, Rules Prof. Conduct), and disclosure is required here, much as it is required when a lawyer negligently permits the statute of limitations to run on his client's cause of action. Canon 1 of the American Bar Association Code of Professional Responsibility requires that all lawyers "assist in maintaining the integrity and competence of the legal profession," and American Bar Association Code of Professional Responsibility, Ethical Consideration 15, speaks of "high standards of professional conduct." Despite the fact that Blue's client in fact may be benefited rather than harmed, the appropriate course of action is for all attorneys to disclose the problems to their clients and to withdraw from further employment, pursuant to rule 2-111 (A)(2) of the Rules of Professional Conduct.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
| . |