California Bar Journal
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Two new ethics opinions on candor and confidentiality

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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 attorney’s 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 client’s 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 client’s 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.] Respondent’s 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 client’s 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 confidentiality:

“[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 client’s case and may counsel the best means to achieve the client’s 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 client’s] 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.