By Joan C. Rogers
California lawyers publicly disparaged by a former client may not fight fire with fire but may try to counter the criticism so long as they stay within certain boundaries, according to a Dec. 6 opinion from the Los Angeles County bar's ethics committee (Los Angeles County Bar Ass'n Professional Responsibility and Ethics Comm., Op. 525, 12/6/12).
Emphasizing that California does not have a statutory self-defense exception to lawyer-client confidentiality, the committee advised that a lawyer's response to an ex-client's public criticism such as a negative internet review must be proportionate and restrained, and must not disclose confidential information or injure the client's interests in anything related to the former representation.
The committee addressed a scenario in which a lawyer represented a client in a civil case. After the representation ended, the former client made a negative post on a website that discusses lawyers, saying that the lawyer was incompetent and overcharged the client, and suggesting that others avoid using the lawyer.
The committee framed the issue in these terms: In what manner, if any, may the lawyer publicly respond to the former client's disparaging public comments?
In tackling this question, the committee said it was assuming that the ex-client's comments did not disclose confidential information, that the former client had not waived the duty of confidentiality or the attorney-client privilege, and that there was no litigation or arbitration pending between the lawyer and the ex-client.
An attorney may not do anything that will injure a former client in any matter in which the lawyer represented the client, the panel stated.
A lawyer's response to an ex-client's public criticism must be “proportionate and restrained,” and must not disclose confidential information.Los Angeles County Ethics Op. 525
As authority, the committee cited Oasis W. Realty LLC v. Goldman, 250 P.3d 1115, 27 Law. Man. Prof. Conduct 315 (Cal. 2011), which allowed a real estate developer to proceed with a breach of fiduciary duty action that accused its former lawyer of rallying opposition to the developer's project after having represented the client in that matter, and Styles v. Mumbert, 79 Cal. Rptr.3d 880, 24 Law. Man. Prof. Conduct 408 (Cal. Ct. App. 2008), which sanctioned a lawyer for attempting to oppose a former client on appeal from a default judgment against the client in the very litigation in which the lawyer had previously represented the client.
Although these decisions did not involve a lawyer's response to an ex-client's public comments, they are instructive about the duties owed to a former client, the panel said.
The committee also emphasized that a lawyer owes a duty of confidentiality to former clients as well as to current clients. There is no statutory exception, it pointed out, to the duty of confidentiality set out in Cal. Bus. & Prof. Code §6068(e)(1) or the attorney-client privilege in Cal. Evid. Code §950 that would permit lawyers to defend themselves by disclosing confidences or privileged information.
In the absence of a statutory exception allowing disclosure of confidences in response to the former's client's public criticism, the committee said, “Attorney remains obligated to preserve Former Client's confidential information, and Attorney cannot disclose such information in response to that public statement unless authorized to do so by a court's ruling in a judicial proceeding.”
In a footnote, the committee acknowledged that ABA Model Rule 1.6(b)(5) provides a “self-defense” exception to the duty of confidentiality in certain circumstances, but it stressed that California has not adopted the Model Rules. Those rules may be consulted for guidance only when then there is no California rule directly on point, according to the opinion.
The committee concluded, however, that the inquiring lawyer may respond to the former client's negative critique so long as:
Concerning the third point, the committee drew on a comment to Section 64 of the Restatement (Third) of the Law Governing Lawyers (2000), which addresses using or disclosing information in a lawyer's self-defense. According to Comment e to Section 64, disclosure is warranted only when it constitutes “a proportionate and restrained response.”
In other words, the committee explained, the attorney may say no more than is necessary to rebut the former client's criticism.
This limitation has been recognized in other contexts, the panel said, citing Los Angeles County Ethics Op. 498 (1999) (lawyer may disclose confidential information in fee dispute with ex-client only if relevant to dispute, if reasonably necessitated by issue raised by ex-client, and if lawyer avoids unnecessary disclosure); Los Angeles County Ethics Op. 452 (1988) (lawyer may file claim as creditor in former client's bankruptcy proceeding and may seek to have his debt declared nondischargeable but may not prosecute objections to client's bankruptcy discharge in general); and In re Dixon, 4 Cal. State Bar Ct. Rptr. 23, 15 Law. Man. Prof. Conduct 165 (Cal. Bar Ct. Review Dep't 1999) (former client's malpractice suit against lawyer waives privilege only to extent necessary to resolve suit; lawyer may not disclose more than is essential to preserve lawyer's rights).
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