down, drag-out litigation is only interesting if it happens on a level
playing field. The judiciary is responsible for equalizing the
players. Three recent cases illustrate this process. All three mention
General Dynamics Corp. v. Superior Court (1994) 7 Cal. 4th 1164, a
font of ethics possibilities.
Obviously, lawyers created employment litigation.
They try to purge the workplace of agism, sexism, racism and other
"isms" we haven't even labeled yet. Therefore, it would be a
cruel "judicial practical joke" if lawyers were not entitled to
enforce their own personal claims, which could be banned by the
sacrosanct duty of confidentiality. How can clients be encouraged to
divulge everything to counsel, and then face them on a lopsided
litigation field? Attorney termination cases require delicate judicial
balancing, permitting limited disclosures of "necessary"
information and aggressive judicial management. When push comes to
shove, confidentiality trumps a lawyer's remedy, and the case will
be dismissed rather than sacrifice "attorney-client privilege."
Solin v. O'Melveny & Myers, 2001 Cal. App. LEXIS 388, from
Confidentiality (Business and Professions Code
6068 (e)) is the most hallowed ethical duty in California. It is
humongous when compared to the puny attorney-client privilege.
It "brooks no exceptions" and generally trumps the Evidence
Code. Are we second-class citizens or employee voyeurs who create, and
then watch others obtain, workplace liberties?
Reconciliation of an attorney's rights with
client confidentiality requires that you look to third party benefit
contractual analysis. Ask for whom was the benefit intended. If the
disclosure inures to the benefit of the client, then it is
permissible. If it promotes the lawyer's interest, it is, was, and
will forever be, prohibited.
Fox Searchlight Pictures v. Paladino, 2001 Cal.
App. LEXIS 377 maintains you can consult "lawyer to lawyer" to
determine if you can properly proceed on an unlawful discharge case.
The disclosure inures to the client's benefit by preventing the
attorney from acting like a loose cannon, filing a public complaint
absent a deliberate consideration of the issues. Lawyers should not be
forced to "fend for themselves" in determining the scope of
permissible disclosure, mystically divining the meaning of the rules.
"Professionally consulting another lawyer" may be necessary for
competence and is anticipated in rule 3-110 (C), even when confronted
with a facially unqualified prohibition. Yet Solin suggests that use
of a cryptic hypothetical best protects the attorney-client privilege.
Consulted attorneys may be immunized from malpractice liability for
the advice, unless their negligence can be established without
breaching the attorney-client privilege.
A recent California Attorney General Opinion
(00-1203, May 23, 2001) supports these concepts prohibiting lawyers
from pandering client secrets to fill their own pockets. The False
Claims Act (Whistle Blowing) awards treble damages, plus costs. Those
damages are not intended to benefit the client. Again, confidentiality
trumps disclosure when it is motivated by financial benefit to the
lawyer. The fundamental intimacy established by the attorney-client
relationship means you just can't kiss and tell.