"Oh, you're a lawyer? Well, let me ask you about something..." One minute, you're just another stranger elbowing your way to the cocktail weenies and mini quiche and the next, you're someone's new best friend.
It's not just at cocktail parties that lawyers experience this phenomenon. Any attorney who has spent much time in the courthouse has been approached by ordinary folks, lost in what to them is a foreign world, drawn to anyone with a suit and a briefcase. Sometimes they just want to know how to get to Department 35. Frequently, however, they want help with whatever legal problem brought them there in the first place.
A working knowledge of the ethical guidelines applicable to these and similar situations will help keep a well-intended lawyer from unwittingly forming an attorney-client relationship and/or creating a duty of confidentiality with respect to the information received. The creation of these duties, typically without much information upon which to base any advice, not only gives rise to potential malpractice exposure, but the good Samarian attorney may be conflicted out of representing the paying client on the other side of the case should the opportunity arise.
As discussed last month, the attorney-client privilege only protects communications that were made under circumstances that the client reasonably expects to be held in confidence. "Confidential communication between client and lawyer" is defined in Section 952 as "information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship."
California formal ethics opinion
The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion 2003-161 examines under what circumstances a communication made in a non-office setting by a person seeking legal advice may be entitled to protection as a confidential communication when the lawyer makes no agreements of confidentiality and does not accept the case. The opinion concludes that the communication may be entitled to protection under two circumstances:
1. If an attorney-client relationship is created by the contact, or
2. Even if no attorney-client relationship is formed, the attorney's words or actions induce in the speaker a reasonable belief that the speaker is consulting the attorney, in confidence, in his professional capacity to retain the attorney or to obtain legal services or advice.
The opinion points out that attorney-client relationships are formed by contracts, whether express or implied. In the examples cited above, casual conversation initiated by strangers where the lawyer declines representation does not form an express contractual relationship. In determining whether an implied contract is formed, several factors must be considered. These factors include: whether the lawyer agreed to look into the matter, provided legal advice and/or was consulted in confidence; and whether the individual seeking advice "reasonably believes that he or she is consulting a lawyer in a professional capacity."
Even if no attorney-client relationship is formed, depending on the circumstances, the lawyer may have a duty to keep the information confidential. The opinion first examines whether the person seeking advice is a "client" for purposes of the privilege, and concludes that the critical factor in determining this issue is the conduct of the attorney. The next question is whether the communication is confidential. The opinion lists four factors to consider:
1. The presence of non-essential people who can hear the communication;
2. The reason the person is speaking to the attorney;
3. The actions taken by the attorney to advise the speaker that the information is not confidential; and
4. The extent to which the information is public knowledge, or of a sensitive nature to the speaker.
The opinion notes that the attorney-client privilege is an evidentiary privilege (citing Cal. Evid. Code Sections 952-955), which "permits the holder of the privilege to prevent testimony, including testimony by the attorney, as to communications that are subject to the privilege." It explains that California Business and Professions Code Section 6068(e) is broader than the attorney-client privilege because it covers all information acquired during the course of the professional relationship "that the client has requested be kept secret or the disclosure of which would likely be harmful or embarrassing to the client." The opinion concludes that an attorney may owe a duty of confidentiality under Cal. Bus. and Prof. Code Section 6068(e) and CRPC 3-310(E) (see infra) to persons who never actually become clients.
California rule of professional conduct
If an attorney, even through implied contract, has acquired a duty to keep a speaker's information confidential, Rule 3-310(E) may preclude the attorney from representing any other parties in the matter at issue.
CRPC 3-310 (E) provides that, "A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.
Patrick Mazzarella is a deputy district attorney in the Special Operations Division of the San Diego District Attorney's Office. She can be contacted at email@example.com. Comments may be published as Letters to the Editor. The information in this column is intended to be informational only and does not constitute legal advice. Please shepardize all case law before using.