The attorney-client relationship is afforded unique protections under the law. Courts will uphold the protections of that relationship in recognition of the fact that clients should feel encouraged to seek legal advice and rely on advice from a lawyer. And California law places a substantial burden on lawyers to take steps to protect the attorney-client privilege.

Indeed, Section 6068(e) of the Business and Professions Code calls on lawyers “[t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The risk of not protecting the privilege is that the lawyer can face criticism from the bar or courts. The privilege can also be subject to waiver, particularly if the client and attorney are not taking sufficient steps to guard the privilege. Indeed, a party seeking to invade the attorney-client relationship or to obtain disclosure of confidential information may try to show that neither attorney nor client acted to protect confidentiality in the relationship.

Because the client is generally understood to be the “owner” of the privilege and of its confidential information, the client may refuse to disclose—and prevent others from disclosing—confidential communications between the client and lawyer. But a lawyer acting inconsistently with the protections of the privilege can create risk for the sanctity of the relationship.

Here are some examples of areas where a failure to maintain the privilege could lead to the erosion of attorney-client principles.

Conducting Legal Business in Public

In this age, lawyers are often able to take their practice on the road, responding to emails from a laptop on the plane or participating in conference calls while running errands. However, sometimes lawyers let their guard down in situations that could pose a risk to attorney-client confidentiality or privilege.

By engaging in conversations implicating client confidences outside the office setting, lawyers may create risk that the confidences can become subject to waiver. Many state bar opinions advise caution to lawyers who engage in business calls on their cellphones. Specifically, lawyers are warned that engaging in confidential calls in public places can chip away at the attorney-client privilege.

To help minimize the risk of a privileged conversation being overheard (and thus creating risk for the entire relationship), lawyers may consider ending calls until they can be held in a more secure, private area or can be careful not to disclose confidential information while on the phone that, if overheard, could make public the identity of the client, the scope of the representation or other confidential information. Lawyers can also use privacy screens when working on laptops in public places to help reduce the risk of someone else viewing confidential information.

Non-Clients Paying Legal Fees

Lawyers routinely agree to represent clients whose legal fees will be paid by a third party. Examples include companies paying for the representation of a current or former employee in a lawsuit arising out of their employment, or parents paying for a criminal defense or family law lawyer for their child.

Although such third-party arrangements are commonplace and ethically permissible, there is still a risk that arises from the fact that a lawyer’s ethical duty of confidentiality, the attorney-client privilege and the duty to abide by the client’s wishes all belong exclusively to the client, not to the party paying the bills.

Rule 1.8.6 of the California Rules of Professional Conduct provides that lawyers may accept representations where the fees are being paid by a non-client subject to three conditions: (1) the client gives informed written consent; (2) there is no interference with the lawyer’s independent professional judgment or with the attorney-client relationship; and (3) confidential information is protected, in compliance with Rule 1.6 and Business and Professions Code section 6068. These details, among others, can be confirmed in the engagement letter.

The comments to the rule recognize that existing relationships between insurers and insureds where the insurer is selecting counsel for the insured may remain in tact without waiver. But for instances where a third-party payor does not share a common legal interest with the client, the participation of the third-party can create a risk of waiver.

Complying with Rules

When lawyers are subpoenaed to testify or to provide information regarding their clients, state bars typically note that the lawyers need to act to protect the privilege and preserve their clients’ interests. Bars vary in how far they say a lawyer must go to protect the privilege, but in California, the burden on lawyers is significant.

Courts may occasionally order that a lawyer must produce confidential or privileged information where a movant has demonstrated a prima facie basis to suspect that the lawyer was hired to assist the client or otherwise facilitate the commission of a crime or fraud. In those instances, when a lawyer supports a client’s criminal activity, courts have concluded that the protection of the attorney-client relationship has been essentially forfeited by the parties’ misconduct. The use of this doctrine is growing, although courts generally take the doctrine very seriously, given the high burden and the issues at stake.

By being aware of these risks that can negatively impact the attorney-client relationship, lawyers can do their part to maintain confidences and protect the attorney-client relationship for all.