December 06, 2016
Protecting the Attorney-Client Privilege for In-Firm Ethics Communications
When a client matter raises a legal ethics issue or, in the worst-case scenario, when a client accuses you of malpractice, it’s a good idea seek the advice of other lawyers at your firm. But maintaining the privilege of those communications within your firm, related to legal ethics issues or malpractice, is more difficult than it may seem at first glance. Until relatively recently, California cases suggested that the attorney-client privilege for attorneys seeking legal ethics advice within their own firm regarding ethics issues about current clients necessarily gave way to the firm’s fiduciary duties to its client.
This generally meant that when a lawyer sought in-firm legal advice from another attorney, even one designated as the firm’s general counsel, there would be no attorney-client privilege for those communications. This seemed an odd result, since we would expect courts to encourage attorneys to seek advice internally when an ethical issue, or a malpractice issue, arises. If those communications are not privileged, and beyond that, if you had an affirmative duty to disclose all of them to the clients, how likely would you be to seek that advice?
California courts are now clearly moving in the direction of recognizing the attorney-client privilege for in-firm communications regarding legal ethics issues. Following similar trends in other jurisdictions, including New York, Massachusetts, and Georgia, recent California opinions suggest that courts will recognize the attorney-client privilege for in-firm ethics advice and communications. So you can assert and protect the attorney-client privilege for in-firm ethics advice, but successfully asserting the privilege in these situations requires advance planning.
However, there are some straightforward steps you can take at your firm take to make it more likely that you will be able to successfully assert the privilege:
(1) Designate an attorney or a group of attorneys within your firm as ethics counsel;
(2) If you seek ethics counsel from an attorney in-house, that attorney should not have worked on the client matter at issue;
(3) Don’t bill the time you spend discussing the client’s ethics issues to the client; and
(4) Keep the communications confidential, even within the firm.
Significantly, asserting the attorney-client privilege does not abrogate your fiduciary duties to the clients: among other things, you still have a duty to duty to keep a client apprised of developments in their matter, and to alert the client to any incident of malpractice. The cases now suggest more clearly, however, that you can preserve the privilege if you take the right steps internally. These issues can be mitigated by seeking separate outside ethics counsel, which is also good advice for attorneys working in solo practices or small firms without designated internal counsel.