|Oregon State Bar Bulletin JUNE 2011|
Mentoring is a valuable and integral component of lawyers’ professional development. When a lawyer is handling cases outside of the lawyer’s expertise or comfort zone, seeking guidance from other lawyers may even be necessary in order to provide competent representation to clients. Consultations between lawyers range from informal, superficial discussions — such as might occur at a CLE event over coffee or on a list-serve — to detailed, lengthy discussions with the aim of obtaining more individualized, substantive assistance.
This peer to peer guidance will play an important role in the development of the professional skills, habits and character of new lawyers participating in the Oregon New Lawyer Mentoring Program. The program was created by the Oregon Supreme Court in conjunction with the Oregon State Bar over the last year and launched in May with the first group of 2011 new admittees.
While consultations among lawyers are clearly important and encouraged, lawyers who are not members of the same firm or formally affiliated on a particular case must be mindful of their ethical obligations to clients when engaging in such discussions.
In the recent OSB Formal Ethics Op No 2011-184, the OSB Legal Ethics Committee identifies some of the ethical issues that can arise in such consultations and the steps that lawyers can take to avoid problems. The committee summarizes its advice as follows:
For the consulting lawyer … care should be taken not to violate the duty to maintain the confidentiality of information relating to the representation of a client. For the consulted lawyer … the duty of loyalty to existing clients must be considered.
Consulting Lawyer Duties
The committee starts by reminding us that Oregon RPC 1.6 prohibits the disclosure of “all information relating to the representation of a client” except as specifically provided in the rule. There is no exemption for lawyers participating in mentorship programs. Disclosure is allowed, however, where “impliedly authorized to carry out the representation.” RPC 1.6(a). ABA Formal Ethics Op 98-411, Ethical Issues in Lawyer-to-Lawyer Consultation, interprets identical language in Model Rule 1.6 “to allow disclosures of client information to lawyers outside the firm when the consulting lawyer reasonably believes the disclosure will further the representation by obtaining the consulted lawyer’s experience or expertise for the benefit of the consult- ing lawyer’s client.”
The committee distinguishes between consultations involving the disclosure of protected information and those that are general in nature. For example, requesting direction on case law, statutes or rules relating to a subject relevant to a client matter would not normally involve the disclosure of information relating to the representation of a client. Therefore, such inquiries would not implicate RPC 1.6. The committee cautions, however, that framing a question as a hypothetical could still result in a violation of RPC 1.6 if the facts given are so detailed and unique that the client’s identity could easily be determined.
A lawyer may reveal information relating to the representation of a client when the client gives informed consent. While consent need not be in writing, RPC 1.0(g) requires the lawyer to provide the client with “adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.” Referring again to ABA Formal Op No 98-411, the committee notes that lawyers may want to explain whether disclosure will constitute a waiver of attorney-client privilege or might otherwise prejudice the client’s interests.
Finally, the committee cautions consulting lawyers to avoid consulting with a lawyer who is likely to be or has already become counsel for an adverse party in the matter because, “[i]n the absence of an agreement to the contrary, the consulted lawyer does not assume any obligation to the consulting lawyer’s client by simply participating in the consultation.” Thus, the consulting lawyer may risk divulging sensitive information to a potential or actual adversary. One way to avoid this risk is for the consulting lawyer to obtain a confidentiality agreement with the consulted lawyer prior to the consultation.
The possible adverse use of information is of particular risk when posting an inquiry to a listserv. The collegial atmosphere fostered on many listservs belies the fact that listserv members often include counsel or parties on all sides of legal issues, as well as adjudicators of pending cases. Thus, the committee urges lawyers to exercise even greater caution when soliciting guidance on a case from a listserv community.
Although not mentioned by the committee in its recent opinion, at least one lawyer in Oregon has been disciplined for posting confidential information on a listserv. See In re Quillinan, 20 DB Rptr 288 (2006). As social networking sites and tools become more popular, lawyers are more likely to use such communication methods to seek guidance from other lawyers. The committee makes clear that the same considerations that apply to mentoring relationships and the use of listservs, also apply to discussions on blogs and other online forums.
Consulted Lawyer Duties
As indicated above, the consulted lawyer assumes no obligations to the consulting lawyer’s client by the mere fact of the consultation. Consequently, the consulted lawyer does not violate RPC 1.6 if he later discloses or uses information received from the consulting lawyer.
Even so, the consulted lawyer must take care not to provide guidance that might subsequently be used to harm her own clients. Drawing on ABA Formal Op No 98-411, the committee gives the following example of the lurking dangers for the consulted lawyer. Imagine seasoned lawyer, Lawyer B, advises less experienced lawyer, Lawyer A, about how a tenant might void a lease. Following Lawyer B’s guidance, Lawyer A advises his tenant client to repudiate the lease. Lawyer B later discovers that his own firm represents the landlord whose lease was repudiated by Lawyer A’s client.
Without a confidentiality agreement in place, Lawyer B would likely be required to inform the landlord client of the consultation with Lawyer A and its possible consequences. While sharing this information is not a breach of Lawyer B’s ethical duties, doing so may have the practical result of seriously damaging Lawyer B’s relationship with the firm’s client. On the other hand, if the two lawyers had entered into a confidentiality agreement about the consultation, Lawyer B and his firm could be disqualified from representing the landlord under RPC 1.10 because a conflict of interest may exist. Under RPC 1.7(a)(2), a self-interest conflict would exist if Lawyer B’s obligations under the confidentiality agreement would materially limit his ability to represent the landlord in the matter.
Consulted lawyers can avoid such conflict problems by insisting, prior to the consultation, that the consulting lawyer provide the name of his or her client so that the lawyer can check for possible conflicts with existing firm clients.
As mentors and new lawyers gear up for participation in the OSB New Lawyer Mentoring Program, they should consider (among other things) how best to structure consultations involving particular cases or clients so as to avoid unintended breaches of confidentiality and conflicts of interest. For example, framing hypothetical scenarios in generic terms, using agreements to maintain confidentiality, and conducting conflict checks prior to more detailed consultations, can all be helpful tools to avoid ethical problems while still getting the best and most out of the mentoring relationship.
ABOUT THE AUTHOR
Helen Hierschbiel is general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 361, or by email at firstname.lastname@example.org.
© 2011 Helen Hierschbiel