Secrets Must Be Kept Even When Not Privileged

Yesterday, I discussed whether an SEC attorney might commit an ethical violation by encouraging an attorney to disclose her client’s confidences.  That discussion was prompted by a recent posting by Lawrence A. West addressing whether attorneys may seek whistleblower awards from the SEC.  My post focused on a California attorney’s statutory duty to preserve “at every peril” his or her client’s secrets.  Cal. Bus. & Prof. Code § 6068(e).  This statutory obligation is reinforced by Rule 3-100 of the California Rules of Professional Conduct which provides that a member must not reveal information protected from disclosure by Section 6068(e) without the informed consent of the client (with the same exception). 

I did not mention the third member of California’s client confidentiality troika.  Evidence Code Section 955 requires every lawyer who received or made a communication subject to the attorney-client privilege to claim the privilege whenever she is present when the communication is sought to be disclosed and she is authorized to claim the privilege.  

Because attorney-client privilege shares at least one basic policy rationale with Section 6068(e), one is tempted to treat them as one in the same.  However, they should not be conflated.  The professional obligations of an attorney under Section 6068(e) and Rule 3-100 are broader.  They require an attorney to preserve her clients’ secrets, not simply information covered by the attorney-client privilege, they apply outside of judicial and other proceedings, and they don’t include the same exceptions.   For example, an attorney may  learn that his client’s husband is having an affair with his client’s sister.  This information may not be subject to the attorney-client privilege and yet it is his client’s secret.  An attorney who discloses such a secret may not violate Section 955, but he does violate Section 6068(e).  Dixon v. State Bar, 653 P.2d 321 (Cal. Ct. Appeal 1982). 

Why is it important to maintain a client’s secrets?  I’ll let Sir Francis Bacon answer that question:

The greatest trust, between man and man, is the trust of giving counsel.  For in other confidences, men commit the parts of life; their lands; their goods, their children, some particular affair; but to such as they make their counselors, they commit the whole: by how much more, they [counselors] are obliged to all faith and integrity.

Francis Bacon, A Harmony of the Essays 310-11 (E. Arber ed., Kings College 1871) (1610) (modernized).