California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JULY 2001
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - July 2001
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News / News Briefs
Two-year fee bill goes to governor
Janet Reno, low-cost MCLE highlight Annual Meeting
Stanley Mosk dies at 88
State Bar wins ABA's Harrison Tweed Award for pro bono, legal access, IOLTA efforts
Foundation will accept grant applications beginning July 16
Winnebago of justice serves those on the road less traveled
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Trials Digest
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Legal Tech - Matter management is not just for litigators
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Opinion
From the President - Public members bring fresh views
Holding judges accountable
Letters to the Editor
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MCLE Self-Study
Alcohol and the workplace
Self-Assessment Test
MCLE Calendar of Events
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Ethics update...
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You Need to Know
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Public Comment
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Discipline
Ethics Byte - Level field or a judicial practical joke?
Former DA disbarred for drunken-driving coverup
Attorney Discipline

ETHICS BYTE

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Level field or a judicial practical joke?

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By DIANE KARPMAN
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Diane KarpmanKnock 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 General Dynamics.

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.