Outside counsel can serve different roles and handle various tasks for a client. In some instances, outside counsel may be called upon to receive and respond to inquiries from government agencies on behalf of the client. Such inquiries—whether informal or formal—could create risks for both client and counsel, especially if they come from government agencies with law enforcement authority.

It could be that a government representative contacts outside counsel without warning to ask questions about the client’s activities, including the client’s business, relationships, or financials. In such cases, the outside counsel may be called upon to navigate the inherent tension with being forthcoming with the inquiring government official and the attorney’s ethical obligations to the client. Indeed, the attorney may wish to engage the government agent to swiftly and favorably resolve the inquiry by clarifying a misunderstanding. At the same time, the attorney has an ethical duty to safeguard confidential client information, particularly where revealing such information could cause the client to face a formal government investigation or criminal liability.

The inquiry may also create risks for the attorney, too. Law enforcement agencies have continued to emphasize individual culpability for corporate wrongdoing, and some investigations into corporate misconduct have sought to hold outside counsel to account. Here are some tips to consider when the government comes knocking, as these inquiries could create a thicket of competing obligations and risks.

Inform the Client

When the government begins its probe, attorneys should inform the client of the inquiry even if the attorney is told the agent’s questions about a client are only “informal.” Indeed, pursuant to Rule 1.4 of the California Rules of Professional Conduct, an attorney must “reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation,” “keep the client reasonably informed about significant developments relating to the representation,” and “advise the client about any relevant limitation on the lawyer’s conduct.” This notification also allows the client to provide direction on how to respond.

The Attorney’s Role

One of the first issues that must be resolved after initial contact with a government agent is what role the attorney will play. The client may want the attorney to represent the client in the investigation. On the other hand, the attorney could be a third-party fact witness with access to information and documents related to a former client or client matter. The precise role should be considered carefully because it can create a conflict between the client and the attorney, as well as other ethical risks.

Consider, for example, a situation where the attorney is asked to represent the client in connection with a government inquiry into work previously performed by the attorney for the client. Such an inquiry could cause a shift in the government’s focus from the client to the attorney. Indeed, if the client’s conduct is under the government’s microscope, any advice provided by the attorney to the client in furtherance of the conduct at issue could face equal scrutiny. In addition, an attorney who suggests to the government that he or she had knowledge or awareness of the client’s conduct could also become a material witness, which may risk the attorney’s ability to continue to serve as counsel or, worse, risk a criminal indictment.

Depending on the circumstances, the attorney and client may be better served by the attorney declining the representation and advising the client to obtain separate counsel in the inquiry or investigation. That could allow the attorney to respond separately as a witness, if appropriate and permitted under the attorney’s confidentiality obligations. However, if the attorney elects to take on the matter, the attorney can continue to evaluate conflict issues during the life of the representation to ensure that he or she is proceeding appropriately.

Duty of Confidentiality

Regardless of the attorney’s role, a government inquiry into a client’s conduct can implicate an attorney’s confidentiality obligations. Pursuant to California Business & Professions Code Section 6068(e)(1), an attorney must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” In this context, “secrets” include “information obtained by the lawyer during the professional relationship, or relating to the representation, which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client.” Cal. Bar Formal Op. No. 1993-133. Rule 1.6(a) of the California Rules of Professional Conduct, in turn, generally prohibits an attorney from revealing information protected from disclosure “unless the client gives informed consent.”

ABA Model Rule 1.6 and many jurisdictions recognize exceptions to this confidentiality requirement, including those that may apply in the context of a criminal or quasi-criminal investigation. California, however, imposes one of the strictest confidentiality obligations in the country with only a narrow exception if the attorney “reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.” Cal. Bus. & Prof. Code Section 6068(e)(2); Rule 1.6(b). This provision is not mandatory and is generally considered a last resort, after the attorney (if reasonable under the circumstances) has made a good faith effort to dissuade the client and provide notice of the forthcoming disclosure. Rule 1.6(c). The comments to this rule also confirm that a lawyer is not permitted to reveal a client’s “completed criminal acts.”

Consult Others for Assistance

In addition to considering the attorney’s ethical obligations to the client, attorneys could consult another member of the firm to assist in handling the matter or to provide a different perspective. Attorneys may also consider notifying the firm’s counsel as well. After all, responding to questions about a client could expose the attorney and even the attorney’s firm to potential risk.

Getting another perspective can be helpful to chart the right course and adhere to it. Under certain circumstances, in-house counsel can involve outside counsel to assist the firm and the lawyer. Some attorneys specialize in handling inquiries from government agencies and may be able to help the “questioned” attorney navigate the inquiry.