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.
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May an attorney ethically disclose the opinion of an expert to third parties?
Attorneys may not ethically disclose to third parties the contents of a report from an engineer retained in connection with litigation involving the attorneys' client where the client has instructed the attorneys not to disclose, even though the report states that a structure on property owned by the client does not comply with the Uniform Building Code and may not survive an earthquake.
American Bar Association Code of Professional Responsibility, Disciplinary Rules 2-100(c)(1)(e), 2-101(a)(2), 4-101(A), (B), 5-101(A); 7-101(A)(I), (B)(1).
Business and Professions Code section 6068, subdivision (e).
The Committee has been asked whether a law firm has the duty to disclose the report of an engineer to persons other than its clients under the following circumstances: The lawyers have been retained and have represented an owner of realty in litigation. They do not represent the client in other matters.
An engineer retained by the lawyers in connection with the litigation has given them a report which suggests that a structure on the property may be unstable in the event of an earthquake. We assume there is a possibility that persons other than the client might suffer property damage or personal injuries if the report is correct and if an earthquake damages the structure.
None of the attorneys in the law firm is an engineer. Their client has been advised of the report and has been advised by the lawyers to notify other persons of the contents of the report. Their client has also been advised of potential civil and criminal liabilities if such disclosures are not made. The client has obtained and given to the lawyers a conflicting report from another engineer.
The client has instructed the lawyers not to take any further action with regard to the engineering aspect of the suit and to cancel further work by the lawyer-retained engineer. The client has also instructed the lawyers to limit their activities to attempting to settle the lawsuit as soon as possible.
There appears to be some doubt whether the opinion of the engineer is correct. We do not here consider the obligations of the lawyers if satisfied beyond a substantial doubt that there is an immediate, substantial risk to the public of great bodily injury unless disclosure is made, as discussed in Los Angeles County Bar Association Committee of Legal Ethics, opinion No. 353 (1976).
The Committee has concluded that, under the circumstances presented, the lawyers should not disclose the report to the other persons.
Ethically, a lawyer is bound to represent his or her client zealously, within the bounds of the law. (See Bus. & Prof. Code, 6067-6068; ABA Code of Prof. Responsibility, EC 7-1.) The lawyers have advised the client to make disclosures of the engineer's report to the persons who might be affected if the building is unsound and have emphasized to the client the possibility of harsh consequences that might result from failure to follow that advise. Their ethical responsibility is to give the client the most complete advice possible, so that the client may make the most informed choice between the alternatives of disclosure and nondisclosure. (Cf. ABA Code of Prof. Responsibility, DR 7-101(A)(1) and DR 7-101(B)(1); EC 7-7 through 7-12 and 7-26.)
If the client has chosen not to disclose the engineer's report to persons or entities the lawyers believe are entitled to such disclosure, the lawyers will have to decide whether they can continue to represent the client at all. The lawyers may consider the nondisclosure to be morally repugnant, or they may conclude that the nondisclosure may expose the lawyers, themselves, to the risk of legal liability to third parties. If that is the case, the loyalties of the lawyers to their client may have been so diluted by the lawyers' personal opinions or interests that they should consider whether they ought to continue to represent the client. The lawyers are required to exercise their professional judgment solely for the benefit of their client, free of compromising influences. Their personal interests and the risks to third persons should not be permitted to dilute this loyalty. (ABA Code of Prof. Responsibility, EC 5-1.) Therefore, if they conclude that there is risk to themselves or to third parties if their advice is not followed, the lawyers should withdraw after taking reasonable steps to avoid foreseeable prejudice to the rights of the client. (See ABA Code of Prof. Responsibility, DR 2-101(A)(2), 2-101(C)(l)(e), 5-101(A); EC 5-2.)
However, the lawyers should not disclose the report, regardless of whether they withdraw. A fundamental statutory and ethical duty of an attorney is to "maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of his client." (Bus. & Prof. Code, 6068, subd. (e).) This stricture is more broad than merely an attorney-client evidentiary privilege. It requires that the relationship between an attorney and client be one of special confidence and trust. The maintenance of the integrity of the legal profession demands at all times the protection of a client who depends upon and confides in the attorney, with the attorney's loyalty being owed to the client. (See Hoffman, On Learning of a Corporate Client's Crime or Fraud - the Lawyer's Dilemma (1978) 33 Bus. Law. 1389, 1395.)
In the context of Business and Professions Code section 6068, subdivision (e), "secret" is not limited to attorney-client communications. "This ethical precept, unlike the evidentiary privilege, exists without regard to the nature or source of information or the fact that others share the knowledge." (ABA Code of Prof. Responsibility, EC 4-4.) Any "information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would likely be detrimental to the client" is a secret which must be preserved. (ABA Code of Professional Responsibility, DR 4-101(A).) Both "confidences" and "secrets" are privileged communications. (ABA Committee on Ethics and Prof. Responsibility, opns. Nos. 341 (1975) and 1458 (1980).)
Although the information which has been communicated to the attorneys is not a confidential attorney-client communication, it is the client's secret. In addition to the statutory duty to maintain inviolate the secrets of their client, the attorneys here are forbidden to disclose the information in question without their client's consent, unless disclosure is compelled by law. (ABA Code of Prof. Responsibility, DR 4-101(B)(I).) Disclosing the report to third parties would be the revelation of information gained in the professional relationship. The client has requested that the information not be disclosed and it is likely that the disclosure of the information would be detrimental to the client. Since we are aware of no statutory compulsion to disclose this information, the statutory duty to maintain the information in confidence should prevail. This duty persists even if the attorneys are discharged. (ABA Code of Prof. Responsibility, EC 4-6.).
The phrase in Business and Professions Code section 6068, subdivision (e), "... at every peril to himself to preserve the secrets," is not to be taken lightly. As stated in a concurring opinion in People v. Kor (1954) 129 Cal. App.2d 436, 477 [272 P.2d 94]:
"Defendant's attorney should have chosen to go to jail and take his chances on release by a higher court. This is not intended as a criticism of the action of the attorney. It is, however, a suggestion to any and all attorneys who may have the misfortune to be confronted by the same or a similar problem."
The attorneys here are in a difficult position. Morally, they may want to warn third parties of potential risks. Personally, they may want to protect themselves against future claims. Professionally, however, the standards of professional ethics and Business and Professions Code section 6068, subdivision (e), both require that the attorneys' primary responsibility is to maintain their own loyalty to their client and to protect the client's secret. This responsibility may not ultimately give the attorneys a safe harbor from liability to third parties, but their duty is to safeguard the client's secret regardless of the risk to themselves.
Disclosure of the engineer's report may destroy the confidence of the clients in the integrity of the law firm or in the integrity of the relationship between the attorneys and the client. Therefore such disclosure should not be made over the client's objection. (See, e.g., New York Committee on Prof. Ethics, opn. No. 405, reprinted in 47 New York State Bar Journal 526 (1975); see also New York Committee on Prof. Ethics, opn. No. 479 (1976), reprinted in 50 New York State Bar Journal 259 (1978) [attorney properly withheld knowledge of location of unburied bodies of victims of unsolved murders because client's communication of information, including the writing of map to site of corpses, was protected by attorney-client privilege].)
It is essential for the proper functioning of the legal system in this state that every person be able to confer freely and fully with, and to confide in, attorneys without risk that the attorneys may utilize clients' confidences and secrets learned in the context of the representation where to do so might cause substantial harm to the client. If our conclusion were other than as expressed in this opinion, we fear that the confidence of the public in the integrity of attorneys would be impaired. If, because of some perceived higher good, attorneys consider themselves free to disclose information which might be detrimental to the client and which has been obtained only because the attorneys were retained by the client, the relationship between the legal profession and those who would otherwise seek our advice will be impaired.
If the nondisclosure of the information ultimately results in the attorneys becoming liable to third parties, that is a risk of practicing law. The primary responsibility of the attorneys here is to their client, and not to third parties. Being the recipient of the client's secrets, the attorneys must safeguard those secrets, even if they ultimately incur liability to third parties because they fulfill their ethical and statutory duties.
We do not here opine whether the lawyers have potential legal liability to tenants or others1. This Committee advises only as to ethical considerations involved in choosing a choice of future conduct and is not qualified to advise regarding such potential legal liabilities. If the lawyers are concerned about the risk of such liabilities, however, their concerns may impair the lawyers' ability to be zealous advocates of the client's cause. There would be an inescapable tension between the interests of the client and those of the attorneys, particularly since the report apparently has been contradicted by another report. Under these circumstances, there may be no satisfactory resolution of the conflict of interest between the lawyers' fulfillment of their responsibilities to their client and their potential need to protect themselves. If the client decides not to disclose, the lawyers cannot make disclosure without giving the impression that they have acted in response to their personal interests or to the needs of third parties, rather than having acted solely out of loyalty to the client. This would be so, regardless of whether or not the lawyers withdraw from the litigation. In addition, if the lawyers believe that the conduct of the client in not making disclosure is morally improper, the lawyers have a right to withdraw from the relationship.
The lawyers' role should not be to choose between disclosure and nondisclosure for the client. Instead, the lawyers' duties are to advise the client fully; to be zealous advocates of the client's cause; and to assure that there are no conflicts of interest between the client, on the one hand, and the lawyers or the lawyers' perceived duties to third parties, on the other. Therefore the lawyers should abide by the instructions of the client not to disclose the engineer's report under these circumstances.
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.
1 Because it would be beyond the scope of this inquiry, we also do not address the extent of the attorneys' responsibilities in the event they are subjected to compulsory disclosure, such as a subpoena or an order to produce documents. (Cf. Evid. Code, 956.)
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