For an entrepreneur seeking legal assistance in the State of California, whether in Los Angeles, Hollywood, Beverly Hills, or any other city in the Golden State, lawyer confidentiality concerns can arise because entrepreneurs, technology startups, and small businesses usually share sensitive intellectual property information, secret information, and other confidential information with their technology startup attorney to receive the highest level of consultation on their business, trademark protection strategies, contract structuring and drafting, and even company formation.
Lawyer confidentiality in a Los Angeles Law Firm is covered by the California Rule of Professional Conduct 3-100. One important aspect of this Rule is that there does not need to be a formal attorney-client relationship for attorney-client confidentiality to apply, as we have previously covered in other blogs.
Details of Lawyer Confidentiality Obligations
Client-lawyer confidentiality encompasses the attorney-client privilege, the work-product doctrine, and ethical standards of lawyer confidentiality. It applies to any information related to the representation and to any matters communicated in confidence by the client. Thus, even initial consultations between attorneys and their prospective clients will be covered.
There is an important public policy reason behind this. It is in the public’s best interest that we encourage people who seek legal assistance to speak freely and openly with a potential attorney even if the information may be legally damaging. This is information that a lawyer needs in order to effectively advise or represent this prospective client. Lawyer confidentiality is an integral part of an effective legal system.
Limited Exceptions to Lawyer Confidentiality
There are, however, certain circumstances in which a lawyer may reveal confidential information communicated by a client. Confidential information may be disclosed if a lawyer reasonably believes that such disclosure is necessary to prevent a criminal act that the lawyer reasonably believes could result in substantial bodily harm or death to an individual.
Before revealing this confidential information, the attorney must: (1) make a good faith effort to persuade the client not to commit the criminal act or attempt to prevent the death or bodily harm; and (2) inform the client of the attorney’s ability or decision to reveal the information. The disclosure must contain no more information than necessary to prevent the criminal act.
There is an important balancing act at play here, with the interests in preserving client confidentiality weighed against the need to prevent a criminal act likely to result in death or serious bodily harm. It is important to note that a lawyer has NO affirmative duty to reveal this confidential information. This is a decision for a lawyer to make based on all of the individual facts and circumstances. Under this Rule 3-100, there is no discipline for a lawyer *not* revealing confidential information that, in hindsight, could have prevented a criminal act resulting in bodily harm or death.
The Discussion under Rule 3-100 provides some factors to consider before disclosure:
- Amount of time a member has to make a decision about disclosure;
- Whether the client or a 3rd party has made similar threats before and whether they have ever acted or attempted to act upon them;
- Whether the member believes the member’s efforts to persuade the client or a third party not to engage in the criminal conduct have or have not been successful;
- The extent of adverse effect of disclosure to the client’s rights under the 5th, 6th, and 14th amendments of the U.S. Constitution or analogous rights under the California State Constitution that may result from disclosure;
- Extent of other adverse effects to the client that may result from disclosure contemplated by the member; and
- Nature and extent of information that must be disclosed to prevent the criminal act or threatened harm.
If a client takes corrective action prior to committing the criminal act, the attorney no longer may disclose this confidential information because the threat is no longer present.
These nuances to the attorney-client confidentiality Ethical Rules in California are important to know for any entrepreneur who is seeking legal representation. Knowing what is covered under lawyer confidentiality can allow an entrepreneur to speak freely about legal issues for which they are seeking assistance without feeling like they have to withhold important information before a formal relationship with an attorney has commenced.
Entrepreneurs that do not fully understand the rules on lawyer confidentiality should clarify any questions they have with the attorney with whom they are consulting and review the California Rules of Professional Conduct here: Rule 3-100 Confidential Information of a Client (ca.gov).
