The longstanding ethical duties of attorney candor
and confidentiality are addressed in two recent decisions of the State Bar Court Review
Department. For practicing attorneys, the decisions amplify the importance of exercising
sound discretion when considering how much to reveal in advocating on behalf of a client.
In In the Matter of Chesnut (00 C.D.O.S. 8702), the review department
rejected arguments that an attorneys deceptive statements to judges were made in
good faith and were not material misrepresentations.
In In the Matter of Johnson (00 C.D.O.S. 8706), the review department held
that the duty of confidentiality protects a clients confidential communication about
a matter of public record.
In Chesnut, the respondent attorney falsely represented to two
different judges that he had personally served the clients opposing party. In
defending against State Bar charges that the attorney violated the statutory prohibition
against deceptive conduct, the respondent argued that he acted in good faith and that his
representations on the matter of personal service did not impact the outcome of any
proceeding. The review department responded by emphasizing the bright line nature of the
duty of candor:
Section 6068, subdivision (d) requires attorneys to refrain
from misleading and deceptive acts without qualification. [Citation.] An attorney
need not utter an affirmative falsehood in order to violate §6068, subdivision (d).
[Citation.] Concealment of a material fact misleads a judge just as effectively as a false
statement. [Citation.] No distinction can therefore be drawn among concealment,
half-truth, and false statement of fact. [Citation.] Respondents unqualified
and unequivocal statements to judges that he served [the opposing party] under
circumstances that should have caused him at least some uncertainty were . . . deceptive .
. . . (00 C.D.O.S. at p. 8704)
The respondent attorney received a two-year suspension from the
practice of law, stayed on the condition of three years of probation with conditions,
including a six-month term of actual suspension.
In Johnson, the respondent attorney represented a client seeking
child visitation rights. Previously, the client had been convicted of a felony that was a
matter of public record but not easily discovered. Although the client told respondent
about the conviction in confidence, respondent disclosed it to a co-worker of the client
who eventually confronted the client and disclosed the conviction to other co-workers to
the clients embarrassment. The review department held that respondent violated
Business and Professions Code §6068(e), which requires an attorney to maintain
inviolate the confidence, and at every peril to himself or herself to preserve the
secrets, of his or her client. Although the respondent was found culpable of several
violations in multiple matters, the review department gave due attention the issue of
[The] ethical duty of confidentiality is much broader in scope
and covers communications that would not be protected under the evidentiary
attorney-client privilege. [Citation.] It prohibits an attorney from disclosing facts and
even allegations that might cause a client or former client public embarrass-ment.
[Citation.] This duty of confidentiality complements the evidentiary presumption that
communications from client to attorney during their professional relationship are
confidential. [Citation.] [The client] communicated . . . [the felony conviction] to aid
respondent in effectively represent-ing [the client].
Indeed, the very reason for both the duty of confiden-tiality and the
attorney-client privi-lege is to foster frank and open communication between client and
lawyers so that the lawyer will be fully informed of the clients case and may
counsel the best means to achieve the clients aims. [Citation.] In addition, the
attorney-client privilege can attach to confidential communications of documents that are
available to the public and information that may be known to others. [Citations.] On this
record, we have an ample basis to [hold] that respondent breached [the clients]
confidence by disclosing [his felony conviction] without good cause . . . . (00 C.D.O.S. at p. 8710)
The respondent received five years of suspension, stayed, and five
years of probation with conditions, including a two-year term of actual suspension.