Category: Legal Ethics

Legal Ethics

Ethical Roadmap for Data Breach or Cyberattack

By Carole Buckner

ABA Formal Opinion 483 provides a roadmap regarding a lawyer’s ethical obligations following a cyberattack or data breach involving confidential client information, where such information is misappropriated, destroyed or otherwise compromised, or where the data event impairs the lawyer’s ability to perform client services.  The ethical obligations of lawyers following a data breach depend on the lawyer’s role, level of authority, and responsibility in the operation of a law firm. Read More

Legal Ethics

Stop Reading Inadvertently Disclosed Privileged Writing and Notify Counsel

By Rayna A. Stephan

Resist the temptation of examining apparently privileged writing sent inadvertently by opposing counsel. Stop reading and return it to sender.

When an attorney receives a writing that appears to be confidential and privileged, the attorney has an ethical duty not to examine the writing any more than is essential to determine if it is privileged. Then, the attorney shall immediately notify the sender that he or she received material that appears to be privileged, and resolve the issue either by agreement or by seeking the court’s intervention. See Rico v. Mitsubishi Motors Corporation, 42 Cal.4th 807 (2007). The Supreme Court in Rico noted that “[a]n attorney’s obligation is not only to protect his client’s interests but also to respect the legitimate interests of fellow members of the bar, the judiciary, and the administration of justice.” Rico, 42 Cal.4th at 818.

The Rico court adopted the standard applied in State Compensation Insurance Fund v. WPS, Inc., 70 Cal.App.4th 644 (1999), the seminal California decision defining an attorney’s ethical obligations upon receiving another party’s inadvertently disclosed materials protected by the attorney-client privilege. Additionally, the Rico court extended the rule to writings protected by the attorney work product doctrine.

In a more recent opinion, the McDermott court clarified that the attorney’s ethical obligation to return the inadvertently disclosed writing does not only arise when the writing is inadvertently disclosed during discovery in litigation, but such ethical obligation arises regardless of how the lawyer obtained the inadvertently disclosed writing. McDermott Will & Emery LLP v. Superior Court, 10 Cal.App.5th 1083 (2017). The McDermott court also explained that the inadvertent disclosure of a writing protected by the attorney-client privilege does not waive the attorney-client privilege because such disclosure lacks the necessary intent to waive the privilege.

Likewise, in Ardon v. City of Los Angeles, 62 Cal.4th 1176 (2016), the California Supreme Court held that the governmental entity’s inadvertent release of privileged writings in response to a Public Records Act request does not constitute a waiver of the attorney-client or work-product privilege.  The court explained that Government Code section 6254.5 which generally provides that disclosure of a public record waives any privilege applies to intentional and not inadvertent disclosure. The court noted that the legislative history of section 6254.5 explains it is intended to prevent selective disclosure, which is an intentional act and not an inadvertent disclosure.

The California Supreme Court has recently approved a new Rule of Professional Conduct on this issue.  This underscores an attorney’s ethical obligations upon receiving another party’s inadvertently disclosed materials protected by the attorney-client privilege. California Rule of Professional Conduct, Rule 4.4, which will be effective on November 1, 2018, states:

Where it is reasonably apparent to a lawyer who receives a writing relating to a lawyer’s representation of a client that the writing was inadvertently sent or produced, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall:

(a) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and

(b) promptly notify the sender.

Rule 4.4 essentially codifies the case law precedents set out above. Further, the new Rule of Professional Conduct was approved by the California Supreme Court; as such a clear message is being articulated as to the proper handling of inadvertently disclosed privileged materials, whether obtained in the course of discovery or through any other means.  It is therefore incumbent upon attorneys to properly, and ethically, react to inadvertently disclosed privileged writings. Resist the temptation they pose and return the privileged writings to sender.

Rayna A. Stephan

 is the San Diego Chief Deputy City Attorney. Read More

Legal Ethics

Communication with Clients — Utmost Importance

By Michael Crowley

California attorneys are constantly reminded that the number one reason for complaints to the state bar about attorneys is the failure to respond to requests for information from clients. Why? Think about it.

Besides avoiding problems with the state bar by violating the California Rules of Professional Conduct, what does good communication do for you and your law practice?

  1. Fosters good relations with your client;
  2. can often provide you with additional information you weren’t aware of from the client and preempt problems down the road;
  3. can lead to additional referrals because you have stayed in communication; and,
  4. perhaps most important of all, it is one of the few things we can single-handedly control.

We can’t control what the court will do. We can’t control what opposing counsel will do. We can’t control how events can change things. We can, however, control how often we pick up the phone to call a client or write an email. We can also strive to control how our staff interacts with our clients by making sure they are in the loop on the cases, including knowing deadlines and court appearances approaching.

Setting aside for the moment these considerations that likely just fall in the realm of good business practices (which by the way, failure to know good business practices is another high-on-the-list reasons for state bar complaints) what are the rules?

California Rules of Professional Conduct (CRPC) Rule 3-500 requires that we keep our clients “reasonably informed about significant developments relating to the employment or representation.” The rule goes on to state that this includes “promptly complying with reasonable requests for information and copies of significant documents when necessary . . .” (emphasis added).

Rule 3-510 requires the communication of settlement offers along with “all terms and conditions of any offer made to the client in a criminal matter; and all amounts, terms, and conditions of any written offer of settlement made to client in all other matters.” Again, the rules state this will be done “promptly.”

These communications must be made within the current rules. We all know that we must maintain our communications confidential. To drive this point home, both the Business and Professions Code 6068(e)(1) states we must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,” and CRPC 3-100 restates it by referencing B&P §6068 and stating information can only be revealed with “informed consent of the client.”

In these days of hacking, cyber-thefts and malware we are responsible for taking reasonable steps toward preserving our client’s confidential communications. One step is discussing it with your client and placing it in your retainer agreement that your client’s emails are not always confidential. For example, the use of a company email when the company’s policies allow for their access to employees’ emails calls for your client to set up a separate email for you to communicate with the client confidentially.

We all have experienced pesky and annoying clients. But the rules don’t provide an exception as to those clients. Seldom does procrastination as to your communication make it any better. The rules require your “prompt” communications with your client, good business practices dictate it and avoidance of state bar problems make it an excellent practice. We should all endeavor to lower the lack of communication from the top reasons for state bar complaints.

Michael Crowley is the Founder and Lead Attorney of the Crowley Law Group.

This article was originally published in the SDCBA’s “Ethics in Brief” column series.

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.** Read More