Professionals Don’t Kiss and Tell

Professionals love to promote their success stories.  Securing major victories can help attract new clients and help establish professional reputation.  This is especially true of attorneys, who are often solicited to comment on public aspects of a case once it has concluded.  However, post-case commentary could lead to a violation of the attorney’s duty of confidentiality—even when the information discussed concerns issues that are widely known or publicly available.

The State Bar of California Standing Committee on Professional Responsibility recently published a proposed opinion addressing the duty of confidentiality by an attorney to a former client.  The opinion addressed a scenario in which a lawyer was hired by a hedge fund manager to defend against a fraud claim by an investor.  The manager settled the lawsuit, which was documented in a non-confidential settlement agreement.  Once the suit was dismissed, the representation ended.

Several months later, the attorney read an interview with the former investor/plaintiff in a newspaper article in which the plaintiff recited details of the dispute.  In response, the attorney wrote to the newspaper and stated that she had represented the manager in the dispute and that the plaintiff’s claims may have some merit.

In analyzing whether this statement violated the California ethics rules, the standing committee noted that attorneys owe their clients a duty of confidentiality, which is an ethical duty that is separate and distinct from the attorney-client privilege.  The committee continued that the duty of confidentiality applies to a broader category of information than attorney-client communications, and encompasses all information that relates to the representation which could cause a current or former client public embarrassment.

Based on this standard, the committee concluded that the attorney violated her ethical duty of confidentiality when she commented on the newspaper article. The remarks could have a negative connotation on the attorney’s former client. Thus, although the investor’s interview was public and the manager was no longer a client, the attorney’s comments could cause the former client harm or embarrassment in violation of the ethics rules.

Attorneys must be cautious when commenting on cases publicly to ensure that their statements do not disclose any confidential communication or other fact that could reflect poorly on a current or former client.