THE IMPORTANCE OF KNOWING WHO IS, AND WHO IS NOT, MY CLIENT
Neil J. Wertlieb*
Lawyers must be able to identify who is, and who is not, their client in order to comply with their professional obligations. Lawyers owe fiduciary duties to their clients,1 including the duties of loyalty and confidentiality, which the California Supreme Court considers the most fundamental qualities of the attorney-client relationship.2 These duties to the client are embodied in the California Rules of Professional Conduct (the "Rules"), most notably in Rule 1.6 (Confidential Information of a Client) and Rule 1.7 (Conflict of Interest: Current Clients).
Rule 1.6, together with California Business and Professions Code section 6068(e)(1), obligate a lawyer "to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,"3 "unless the client gives informed consent."4 To comply with this mandate, a lawyer must be able to identify who is the client, so as to ensure whose confidences and secrets are to be protected, and to ensure that the proper person has authorized any disclosure of information.5
Rule 1.7 provides that "a lawyer shall not, without informed written consent from each client […], represent a client if the representation is directly adverse to another client in the same or a separate matter [or] if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests."6 To comply with Rule 1.7, and to avoid impermissible conflicts of interest, lawyers must be able to properly identify who their clients are.7