Attorney-client confidentiality

Most executives are familiar with the
privilege that applies to conversations between themselves and their attorneys, the so-called “attorney-client
privilege” frequently portrayed on television, in the movies and in novels as protecting one’s communications with one’s
lawyer. But confidentiality is actually a
legal principle that extends far beyond conversations you have with your lawyer.

The duty of confidentiality in California
is as strong as any in the professional
world. A California lawyer must protect
client confidences at "every peril to himself
or herself," says Bob Russell, partner with
Procopio, Cory, Hargreaves & Savitch LLP
and chair of the firm’s Professional
Standards Committee.

“Everyone in the law firm who has access
to client records, e-mails, memos or letters
must hold the information contained in
those documents and all communications
confidential,” says Russell. “Even if the
information is a matter of public record
somewhere, unless the information is generally widely known, the client information
that comes into the firm must be treated as
confidential.”

Smart Business spoke with Russell
about what CEOs should know about an
attorney’s duty of confidentiality.

What does the attorney confidentiality duty
cover?

Every bit of information has to be treated
confidentially, even if it’s public information. For example, if your company completes a study that is released to other parties, but is not generally available to the
public, and then you subsequently submit
that report to your lawyer for litigation purposes, your lawyer and the law firm’s
employees must treat the study’s contents
as confidential. This is also true if the executive simply has a consultation with his or
her lawyer about the possibility of filing a
lawsuit, filing for bankruptcy or a potential
merger or acquisition — documents submitted to the lawyer as part of that consultation must be kept confidential even
though those documents may already have
been shared with other parties. The same
duty that applies to your lawyer extends to
all of the employees of the law firm. So a
paralegal, an associate or a secretary who
works on your case must keep all information confidential, including even the identity of the client.

How does a law firm assure that its employees uphold the firm’s duty toward client confidentiality?

Many firms, like Procopio, conduct continuing legal education seminars emphasizing the duty of confidentiality and require
employees to sign an agreement acknowledging their responsibility with respect to
client information and agreeing that they
will not breach the confidentiality of the
firm’s clients. In addition, law firms have a
responsibility to secure their files and must
ensure that vendors they hire understand
the need for security. For example, law
firms frequently rely on off-site records
storage vendors or document shredding
firms. Law firms are required to contract
with vendors who know how to handle the
storage and shredding of secure legal documents, because outsourcing doesn’t
waive the requirement for maintaining
client confidentiality.

What should CEOs ask a prospective law firm
about its client confidentiality practices?

First of all, be sure to ask the tough questions about how the firm will ensure confidentiality when you are interviewing
a lawyer prior to representation. I also
wouldn’t hire a lawyer who seems more
interested in feathering his or her own nest
than representing you. Any time a lawyer
goes public with information about representing a client, whether it’s simply a reference on a Web site or speaking to the
media about the case, that communication
needs to be approved by the client.
Sometimes it’s the right strategy for a
lawyer to come forward during a press
conference and make certain representations about you or the case, but the strategy and content of such a public communication needs to be approved by the client
in advance.

To convey very sensitive information,
consider requesting that your attorney
communicate with you in ways other than
e-mail. Unfortunately, accidents do happen
and sometimes an attorney can hit the
wrong e-mail command or address and
send your information to another party
with no way to retrieve it. Also, it is not
unusual for an executive to give others
(such as an assistant) access to his or her
email, and sometimes communications are
too sensitive, even for assistants.

Lastly, consider asking that all of the documents pertaining to the matter be returned to you once the case is concluded.
This is particularly important if you wish to
maintain the files, since most firms destroy
client files after a set number of years
established in the engagement agreement.

How does a lawyer representing a client in
court deal with the duty of confidentiality?

Once you are in the courtroom, the information that is presented is governed by a
different set of standards, and confidentiality is waived to the extent the lawyer is
required to present the information necessary to the client’s case. However, communications between the client and his or her
lawyer are still privileged; therefore,
except in exceptional cases or upon
approval by the client, discussions between the lawyer and the client remain
confidential, may not be inquired into and
won’t become part of the public record.

BOB RUSSELL is a partner with Procopio, Cory, Hargreaves &
Savitch LLP and chair of the firm’s Professional Standards
Committee. Reach him at [email protected] or (619)515-3244.