Sep 03, 2018
The Erosion of the Attorney-Client Relationship
Sep 03, 2018
By Thomas S. Brown
Since leaving the District Attorney’s Office and going into private practice, I have been schooled and tutored that the duty of confidentiality in the attorney-client relationship is one of the most important principles an attorney can uphold. Rule 3-100 of the California Rules of Professional Conduct (soon to be Rule 1.6) provides that an attorney shall not reveal confidential communications without the informed consent of the client but may disclose confidential information if the attorney reasonably believes the disclosure is necessary to prevent certain criminal acts (or in other limited circumstances under the new rule.) The comments to the rule, both old and new, note that “Preserving the confidentiality of client information contributes to the trust that is the hallmark of the client-lawyer relationship.”
Protecting the interests of individual and corporate clients facing government investigations and prosecutions is an integral part of my practice. The decision whether to disclose confidential information provided by my clients and when to disclose such information is a frequent challenge. It may be in the client’s interest to self-disclose conduct that may violate a specific regulation or statute in exchange for a lesser sanction or to cooperate with the government in an ongoing investigation or prosecution. Alternatively, the more prudent approach may be to divulge nothing and maintain the sacred confidences held between an attorney and his or her client.
Like many of you, I’ve followed the daily legal maneuverings and challenges arising out of special counsel Robert Mueller’s investigation. The impact of this investigation on the attorney-client relationship is indeed significant. We have the frayed relationship between Attorney General Sessions and the President, the revolving door of the President’s legal team, and the revelation that Donald McGhan, the current White House counsel, apparently spent nearly 30 hours with Mueller’s investigators or prosecutors, perhaps without the knowledge of the President. The event with the most impact on the attorney-client relationship, however, must be the headline last week, “Lawyer pleads guilty to violating campaign finance laws, implicates Trump.” Michael Cohen’s recent decision to plead guilty to tax evasion and violating our nation’s campaign finance laws, among other related offenses, was truly a game-changer in the attorney-client relationship.
Putting aside one’s own political views and attempting to ignore the never-ending spin from both conservative and liberal sources on the disgraced “fixer’s” decision, that’s really a very troubling headline to read as an attorney. An attorney who secretly tape recorded and divulged confidential client communications, later exposing his former client, in this case the President of the United States, to potential criminal liability is not an everyday occurrence in the attorney-client relationship. New York, unlike California, is a one-party consent state for recording conversations and the practice is not per se prohibited. The New York bar’s formal opinion is that a lawyer cannot secretly record conversations “as a matter of routine practice,” but may do so if the attorney had a reasonable basis for believing that disclosing that a recording was taking place would “impair pursuit of a generally accepted societal good.” It’s hard to conceive how Mr. Cohen could contend that recording conversations with his client in which they purportedly discussed the payment of so called “hush money” to a woman who may have had an affair with the President constitutes the “pursuit of the generally accepted societal good.” The disclosure appears to fall outside Rule 3-100’s exception that a member may reveal confidential information necessary to prevent a criminal act since Cohen is disclosing information about a criminal event that, according to him, already occurred, not to mention that, as far as we know, the criminal act did not involve a risk of death or serious bodily harm, which at least in California is required for disclosure. I expect that Mr. Cohen’s counsel would contend that the President has already waived any existing privilege by his consistent statements and tweets attacking Mr. Cohen and their prior legal relationship. Whether Mr. Cohen’s guilty plea results in legal peril for President Trump, it is clear that instead of “fixing” issues for his client, Mr. Cohen has plainly destroyed the fundamental relationship of trust in the attorney-client relationship.
Much closer to home, we have no shortage of attorneys and members of the bar doing their best to preserve trust in the attorney-client relationship by doing good work for their clients and good work for the community. This past weekend, I was pleased to attend the Marin Trial Lawyers Association (“MTLA”) Annual Judges Dinner where the Honorable Beverly Wood received MTLA’s Judge of the Year Award, which recognized her for the founding of and continued involvement in the Marin Community Court. The Community Court is a partnership among the Society of St. Vincent De Paul, Legal Aid of Marin and the Marin Superior Court, designed to help the homeless and other underprivileged resolve their legal issues in a non-adversarial and positive environment. Judge Wood’s acceptance speech recognized the substantial volunteer work done by Marin attorneys and encouraged those in attendance to continue to devote their time outside of the office to helping the less fortunate in our county. Jonathan Gertler was acknowledged as the MTLA President’s Award Recipient and he followed Judge Wood’s inspiring words with a humble story about a matter early on in his career when he represented a seriously injured individual in a case against a large railroad. Jonathan went on to stress the need for attorneys to continue to fight for rights of those who have been injured or prejudiced.
In keeping with the theme of “Lawyers Behaving Well,” and with school starting up again, I would like to extend a special note of gratitude to all of the mock trial coaches who have been so instrumental in the development and success of the County’s mock trial program over the years. Many members of MCBA have coached or otherwise been involved in the program, including in just the last three years our own Past Presidents Dorothy Chou Proudfoot, Joel Gumbiner and Gary Ragghianti, current Board Member and District Attorney candidate Anna Pletcher, Deputy District Attorney Tom McCallister, Judge Beverly Wood (when she's not busy receiving awards) and Gordon McAuley, Shelly Kramer, Robert Epstein, Chris Sheron, and Sara Allman. This past week, David Vogelstein, who coached the highly successful Tamalpais High School mock trial team to a national and several state championships, announced his “retirement” from the mock trial program. Here is a link to the article from the Marin IJ about David’s retirement for your review and enjoyment. Please join me in thanking David and all of the other coaches for their contributions to this invaluable program that does much to educate our citizens about the important role of law in our society, not to mention inspire a future generation of lawyers.
As we move into the fall, MCBA is excited to have Judge William H. Orrick III address the membership on the topic of the Continuing Role of Justice in our Federal Court System at this month’s meeting on September 26, followed by the Joy in the Law Conference on September 28. Our annual Judges Luncheon takes place on October 24 and your chance to earn those elusive specialty CLE credits comes with the MCLE Fair on November 29, 2018. Please put these dates on your calendars.
Finally, the Board of Directors welcomes Deputy District Attorney Andy Perez to the Board. Andy will be filling the slot of one of our Board members who had to step down due to work conflicts. Andy is the head of the Marin County District Attorney’s Consumer and Environmental Protection Unit and we look forward to his involvement in the Board.
See you around the courts.
Thomas S. Brown is Of Counsel at Foley and Lardner LLP where he is a member of the Firm’s Government Enforcement Defense & Investigations Practice Group. He is President of the Marin County Bar Association and earned his B.A. from UC Berkeley and J.D. from the University of San Francisco School of Law.