MCLE Article: Informal Consultations With Outside Lawyers: How Much Can Be Shared?

By Rachelle Cohen

Rachelle Cohen is a principal in Kehr, Schiff, Crane & Cohen, LLP in Los Angeles. Her practice focuses on advising on legal ethics issues and assisting clients with their business transactions. Rachelle is a Vice Chair of the California Lawyers Association (CLA) Ethics Committee. She also is a member of the Los Angeles County Bar Association Professional Responsibility and Ethics Committee. She is currently a Co-Chair of the CLA’s Corporation’s Committee, is a former Vice Chair of the Executive Committee of the CLA Business Law Section, and is a former Chair of the CLA’s Partnerships and Limited Liability Companies Committee. Rachelle speaks frequently and has written about legal ethics issues and corporate and transactional issues, and has been a lecturer at the USC Gould School of Law.

Although most lawyers develop a comfort level with handling certain issues and tasks, from time to time, a client will call with an unusual legal question the lawyer is unfamiliar with or with facts that do not apply easily to the law. Lawyers in a firm can consult with one another on novel legal issues or strange fact patterns. But solo practitioners must go outside their "firm" to talk to other lawyers and even those at multiple-lawyer firms might want to go outside the firm to informally consult with other attorneys. Although this type of consultation is common practice, the California Rules of Professional Conduct¹ do not provide a clear basis for permitting informal discussions among lawyers who are not associated; doing so implicates the lawyers’ duty of confidentiality to clients, which is essential to the lawyer-client relationship and the ability of the lawyer to represent the client.²

A lawyer’s duty of confidentiality is set forth in the State Bar Act at California Business and Professions Code section 6068(e)(1), which imposes the lawyer’s duty "at every peril to himself or herself to preserve the secrets, of his or her client." Under Rule 1.6, without a client’s informed consent, a lawyer may not reveal information protected from disclosure by California Business and Professions Code section 6068(e)(1). As explained in California State Bar Formal Opinion No. 2016-195, this duty is broader than the protection of the attorney-client privilege and applies to any information the lawyer learns as a result of representing a current client, the disclosure of which likely would be detrimental or embarrassing to the client or any information that the client has directed the lawyer not to disclose.³ The only exception in the statute or Rule 1.6 is that a lawyer may reveal confidential information only to the extent needed to prevent a criminal act that is likely to result in death or substantial bodily harm to an individual.⁴