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Paperless practice and ethical rules, part IV: the duty of confidentiality

Going Green

In this final segment of the Green Law Office and paperless practice, we examine the duty of confidentiality. One of the most common pitfalls surrounding the use of electronic communication is the failure to recognize the danger of accidentally revealing client confidential information.

With this common danger in mind, this month we examine the duty of confidentiality and the ethical rules that discuss not only the duty itself, but also potential obligations to take precautionary measures to prevent an accidental breach of confidentiality.



Duty of confidentiality

Client communications remain privileged regardless of how they are transmitted. California Evidence Code section 917(b) states that a privileged communication does not lose its privileged status “for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication.”

In California, a lawyer's duty of confidentiality is included within California Business and Professions Code section 6068, which enumerates the duties of an attorney. Business and Professions Code section 6068(e)(1) states that one of these duties is “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

Note that even if the proposed set of professional rules that are pending before the California Supreme Court are accepted, bringing California more in line with the ABA Model Rules, California will retain the provisions of Business and Professions Code section 6068(e), which will result in California remaining unique in the heightened emphasis given to this particular duty.

In addition to the California Business and Professions Code, all attorneys are ethically bound by the California Rules of Professional Conduct. California Rule of Professional Conduct 3-100, Confidential Information of a Client, states in pertinent part that: “(A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.” Discussion Section [2] points out that a lawyer's duty of confidentiality is broader than the often cited work product and attorney-client privileges.

Note that while California has not yet adopted some versions of the ABA Model Rules, when California does not have an ethical rule governing a specific issue, courts may look to the ABA for guidance, although they may not consider ABA Rules and Opinions as binding authority. Regarding ABA formal opinions, case law holds that while an ABA formal opinion “does not establish an obligatory standard of conduct imposed on California lawyers,” the ABA Model Rules may be considered as a “collateral source” where there is no direct ethical authority in California (State Compensation Insurance Fund v. WPS Inc. (State Fund) (1999) 70 Cal.App.4th 644, 656.).

ABA Model Rule of Professional Conduct 1.6 is similar to California Rule 3-100 in its initial paragraph, providing that “a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).”

Regarding a lawyer's duty of competence, however, Comment [17] to the rule explains that a lawyer must “act competently to safeguard information relating to the representation of a client against inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.”

Comment [18] adds that, when transmitting confidential client information, a lawyer must take “reasonable precautions to prevent the information from coming into the hands of unintended recipients.”

Such guidance is arguably critical for the lawyer operating within a Green Law Office, where much if not all of client communication and correspondence is done electronically. The duty of confidentiality is no less expected online than offline. As a practical matter, maintaining confidentiality online may require an enhanced level of diligence given the ability to inadvertently compromise the privacy of electronically transmitted information.



Conclusion

Electronic communication has facilitated the practice of law in many ways and is a valuable mode of communication for the lawyer who is familiar with all of the applicable ethical rules.

A working knowledge of the law and ethical rules governing the mechanics and limitations of online communication will allow you to interact in the virtual world of the Green Law Office effectively as well as ethically. Good luck!



Patrick is chair of the California State Bar Committee on Professional Responsibility and Conduct and immediate past chair of the San Diego County Bar Association Ethics Committee. She writes and lectures on ethics nationally and internationally. Patrick is also a San Diego County deputy district attorney in the Sex Crimes and Stalking Division and has been named by her peers as one of the 2010 Top 10 criminal attorneys in San Diego by the San Diego Daily Transcript and a 2010 Superlawyer. She can be contacted at wendy.patrick@sddt.com. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.

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