Attorneys may not disclose information relating to the representation of a client – discussions with a client are privileged. In the case discussed below, a court found a lawyer need not even know his/her intentional acts violated the Rules of Professional Conduct to be held accountable.
Mr. Miller (“Client”) consulted an attorney, Mr. Smith[i] (“Smith”), for defense in a criminal matter and representation as a plaintiff in a civil matter. The consult came after Client wrecked an ATV after consuming alcohol, injuring himself and a Mr. Burgess (“Passenger.) There was evidence steering components on the ATV failed, contributing to the accident. Smith recommended Client see another attorney, Mr. Jones (“Jones”), for counsel in the criminal matter, and Client did so. Smith and Jones worked in the same office space and often referred work to each other.
Client hired Jones, who assisted in a plea deal for reduced charges. After the plea, Client sought advice from Jones regarding a products liability case against the ATV manufacturer. Jones advised Client the case was not strong, and Client should not pursue the case with Jones.
Approximately two years later, Client was sued by Passenger for injuries sustained in the ATV accident. The complaint was filed against Client by Smith. After Client filed his answer, he changed counsel to a third attorney, Ms. Thompson (“Thompson”).
Jones learned of the lawsuit from discussions with both Smith and Thompson. Jones admitted to knowing: (1) Smith represented Passenger, the party adverse to Client, (2) Thompson represented Client, (3) Thompson wanted to amend Client’s answer to assert a defense related to the manufacturing defect in the ATV, and (4) Smith was trying to prevent Thompson from amending Client’s answer to assert an affirmative defense.
Subsequently, Smith asked Jones to provide information about Client. Even though Jones knew Smith then represented Client, Jones told Smith he had discussed the possibility of filing a lawsuit with Client, but Client decided against it. Smith used this information in his response opposing Client’s motion to amend his answer. However, the motion to amend was granted.
Smith then filed a motion to strike the new affirmative defense, including a declaration from Jones in support thereof. When questioned later, according to Jones, Smith simply wanted to clarify who was representing whom during the conversation. Jones’s declaration stated as follows:
[Jones], under penalty of perjury, deposes and states that I represented [Client]. That [Smith] provided recall documents. That [Client] did not wish to pursue a lawsuit against [ATV company] over the recalled vehicle. This was discussed about the time of his restitution hearing with the owner of the vehicle. The costs of a products liability suit and the legal complications made it something that we did not pursue.
After the declaration was filed, Jones acknowledged it was a mistake, but claimed nothing filed was not already in public record. Jones also denied he was trying to help Smith.
Smith was reported to the Washington State Bar Association (WSBA). The Office of Disciplinary Counsel took the complaint and assigned an officer to the case. Smith submitted testimony he did not know his actions violated the RPCs, as he did not know the specific rules which applied. The hearing officer determined Smith’s actions were negligent and imposed a reprimand.
The Board of the WSBA was informed of the officer’s decision. The Board reviewed the case and unanimously ruled Smith knowingly, and not negligently, disclosed privileged information. The Board then unanimously imposed a nine-month suspension. The Washington Supreme Court accepted review to determine whether Smith’s actions were made negligently or knowingly.
RPC 1.6(a) provides:
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b).[ii]
The Washington Supreme Court found informed consent was not given in this case and exceptions under paragraph (b) did not apply. The court then turned to whether the disclosure was made knowingly.
The ABA defines the relevant mental states as:
“Knowledge” is the conscious awareness of the nature or attendant circumstances of the conduct but without the conscious objective or purpose to accomplish a particular result. “Negligence” is the failure of a lawyer to heed a substantial risk that circumstances exist or that a result will follow, which failure is a deviation from the standard of care that a reasonable lawyer would exercise in the situation.[iii]
Jones argued he was not aware the content of the disclosure in his declaration was a “client confidence,” and therefore. he did not have the requisite knowledge he was violating an RPC.
First, the court found Jones misinterpreted the RPCs. The RPCs do not prevent disclosure of confidences but prevent disclosing information relating to the representation of the client.[iv] This scope is much broader than the one attempted by Jones. Second, the court also found discussions with a client regarding a civil suit is privileged.[v] Third, the court found a lawyer need not know his intentional actions violated the RPCs for those actions to be considered knowing.
The court upheld Jones’s nine-month suspension. Attorneys must act reasonably. Here, Jones appears to not have acted as such. It is likely a reasonable attorney would have cracked the cover on the RPCs for a little refresher before signing a declaration discussing client conversations. Attorneys owe the highest duty to clients. It is imperative clients speak with their attorneys candidly and trust they will use this information in their best interests. For candid conversations to occur, trust must be established. For trust to be built, both client and attorney must be transparent, in both the good and bad subjects of discussion. The type of client service an attorney provides can either distinguish them or diminish them.
[i] All names included in this article are fictitious.
[ii] RPC 1.6(a).
[iii] Standards for Imposing Lawyer Sanctions, American Bar Association (1992), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/sanction_standards.pdf.
[iv] RPC 1.6(a).
[v] In re Cross, citing Hoff v. Safeco Ins. Co. of Ill., 10 Wn. App. 2d 1, 15-16, 449 P.3d 667 (2019).