Legal Ethics Corner: What is Confidential?

William M. Balin, Balin & Kotler

All attorneys know what a client tells them, in private, is confidential and is protected by the attorney-client privilege. (Evid. Code §§950, et seq., especially 952.) However, what about other information that an attorney learns about a client from sources other than the client?

It may surprise some lawyers to learn that their obligation to maintain client secrets extends well beyond what their clients tell them, to include information about the client the lawyer learns from other sources, even if that information is otherwise available to the public.

Subdivision (e)(1) of Business and Professions Code section 6068 requires California attorneys “To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” This duty “exists without regard to the nature and source of information or the fact that others share the knowledge.” (Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621.) Thus, if disclosure of the information would be detrimental or embarrassing to the client, the lawyer must not disclose it. (St. Bar Formal Op. 1996-146, pp. 1-2.)

For example, assume that while representing a client in a California case a lawyer learns that the client suffered a felony conviction in Arizona six years earlier. Disclosure of that information may subject the client to discrediting cross-examination, or embarrass the client. The lawyer must not divulge this information, even though it is a matter of public record and many individuals not a part of the lawyer-client relationship know of it.

Thus, if a lawyer is faced with the question of whether the lawyer may use or disclose such information, it is necessary to first ask what the effect on the client of the disclosure will be. If the disclosure will detrimentally affect the client, the lawyer may not reveal the information.

About the author:

balinWilliam M. Balin has been a BASF member since 2000 and an active member of its Legal Ethics Committee since 2002.