California Issues Broad Opinion on Lawyer Confidentiality

As someone who has been hiring lawyers for over 20 years, I love the idea of lawyerly confidentiality. I don’t want my lawyers talking about my cases unless they’ve got my permission to do so.

And from a lawyer’s perspective, getting it right when it comes to confidentiality isn’t hard: if it’s a close call, if it makes you think at all, then keep your yap shut. Period. That’s both good legal ethics and good business. Why? Because prospective clients aren’t going to give a rip about your nuanced arguments for why your embarrassing disclosures about former clients don’t violate the ethics rules. They just aren’t going to want to be the next one you blab about, which means you won’t be hired.

In issuing the latest opinion on lawyer confidentiality, California notes that a lawyer’s obligation of confidentiality extends beyond merely client secrets and confidences. Rather, it properly covers “all information relating to the representation, whatever its
source,” and may include information that is otherwise publicly available.

From the perspective of a client, I like that: I don’t want my lawyers talking about stuff they’ve worked on for me, even if it IS public. Or worse, doing as one of Donald Trump’s lawyers recently did, using the fact of the former attorney-client relationship to add greater credibility to comments that I might find embarrassing.

And yet . . . should this concept of “public confidentiality” really exist on pain of sanctions? I’m all for calling such loose-lipped attorneys out as being bad for clients, for not exercising their obligation of loyalty to the fullest, etc., but should they be legally prohibited from talking about stuff that every other member of the public is free to discuss?

This is but one of many areas in which attorney regulation has a First Amendment problem.  One of the few court decisions to actually address the issue of attorneys being prohibited from communicating publicly-available information about their clients’ cases  (Hunter v. Virginia State Bar) concluded that the constitutional considerations trumped the regulatory reach of RPC 1.6:

State action that punishes the publication of truthful information can rarely survive constitutional scrutiny . . . To the extent that the information is aired in a public forum, privacy considerations must yield to First Amendment protections. In that respect, a lawyer is no more prohibited than any other citizen from reporting what transpired in the courtroom.

That sounds right to me. Attorneys shouldn’t be subject to legal sanction for talking about truthful, public information, even if so doing embarrasses their clients.

Now, whether those clients (or any potential clients) should want to continue working with such loose-lipped lawyers is another matter entirely.

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