California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - DECEMBER 1999
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ETHICS BYTE

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Protecting yourself from a complaint
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You are opening your mail. From one envelope, instead of a holiday greeting, you extract a malpractice lawsuit or State Bar complaint from one of your favorite clients. You are astonished that your competency and ethics are being questioned. You were the only person who sought their vindication as their champion! Betrayal only marginally describes your feelings. What can you do to protect yourself and salvage your reputation?

Diane KarpmanYou are well aware of the holy obligation of confidentiality, the "hallmark" of the profession. People v. SpeeDee Oil (1999) 20 Cal. 4th 1135. You know that it is a specifically protected privilege in Evidence Code 954. You also are mindful of the fact that a lawyer "shall maintain inviolate the confidence, and at every peril to . . . preserve the secrets . . ." (Business & Professions Code 6068(e)). Confidentiality is again reinforced in Rule of Professional Conduct 3-310(E), prohibiting an attorney's employment where it would involve the use of confidential material information against a former client. Both 3-310(E) and 6068(e) are "aimed to protect the confidential relationship between attorney and client." Jeffry v. Pounds (1977) 67 Cal. App. 3d 6.

However, what do you do when the client is aiming at you? A recent bankruptcy case explores attorney rights to self defense against a complaining client, In re Rindlisbacher (1998 9th Cir.BAP) 225 B.R. 180, 33 Bankr. Ct. Dec. 258. In that case a lawyer, as a creditor in a bankruptcy matter, attempted to block the discharge of a debtor (the lawyer's former family law client), based upon a failure to disclose rental income in his bankruptcy documents. The court validated a lawyer's release from confidentiality "where it is necessary to do so to get paid or to defend himself against charges of improper conduct," and when the attorney's "integrity, good faith, authority or performance of duties is questioned." This is also the case in a fee arbitration and obviously in a State Bar complaint.

Gosh, you are probably thinking that a bankruptcy discharge would discharge the lawyer's fees and that disclosure was therefore necessary to get paid. Simple common sense?

Au contraire. Although you and I might think that the bottom line is about fees and getting paid, the court held that the lawyer's actions were not an "issue" in the bankruptcy proceeding. Therefore, the right of self-defense never matured. The debtor was merely seeking "to obtain a benefit that the law allows." The court held that the "attorney cannot be allowed to pursue the client to the client's detriment, using as a sword information obtained from the client in confidence."

A critical caveat to remember is that disclosure is permissible only to the extent necessary to directly defend your performance. If your communication with the client is called into question, you are not permitted to enthusiastically, in technicolor, disclose a client's sexual predilections.

Diane Karpman specializes in lawyer law. She can be reached at 310/887-3900 or karpethics@aol.com.