In the comments to an earlier post, five legal ethics teachers (3 professors; 2 adjuncts, including me) concluded that Dean Chemerinsky erred in his recent LA Times op-ed. Chemerinsky was commenting on a southern California political race where one of the candidates, a lawyer named Carmen Trutanich, had declined to release his list of clients. Trutanich instructed the press that if they wanted to identify almost all his clients, except for a few particularly sensitive clients, they could find that information down at the court house. But, claimed Trutanich, he was bound by duties of confidentiality and privacy not to release the information himself—even if the information could be found in the public record.
Dean Chemerinsky criticized Trutanich’s position. But, unfortunately, Chemerinsky’s argument invoked the all too common mistake of citing privilege law to define the scope of confidentiality. In so doing, Chemerinsky erroneously defined the duty of confidentiality far too narrowly. As I say, a number of us immediately spotted the error. It’s quite common, even among legal ethics types.
I corresponded with both the Trutanich campaign and with Dean Chemerinsky. The email exchange between me and Chemerinsky is below the jump. Chemerinsky’s response can be read as either (1) tacitly conceding the error and then moving on to argue that information in the public record cannot fall within the duty of confidentiality; or (2) demurring as to whether he erred and then moving on to argue that information in the public record cannot fall within the duty of confidentiality.
If the better reading is (1), then Dean Chemerinsky’s analysis is much improved but still doesn’t state the law correctly. Everyone who has taught or practiced the law governing lawyers knows that information in the public record can fall under the duty of confidentiality—especially in California, which has a strong version of the duty of confidentiality.
That strikes many people as counter-intuitive, but you can look it up. Sometimes when an attorney client relationship is acknowledged in the public record we can go on to conclude that the client has expressly or impliedly authorized the lawyer to disclose the fact elsewhere and at other times. But not always. Here, where political opponents no doubt want to make hay of Trutanich’s client list, Trutanich needs to proceed carefully, and with client consent, before disclosing the list for the purpose of furthering Trutanich’s campaign.
As discussed in the prior post, there are other aspects of Dean Chemerinsky's op-ed that seem reasonable to me. But let's drop the claim that Trutanich is "stonewalling" without legal justification.
Dear Mr. Steele,
Thanks so much for writing. I, of course, am familiar with the distinction between privilege and confidentiality. I think that the easiest answer is that I do not believe that there is any confidentiality when there has been a public appearance, a court appearance, a brief filed, etc. Since that is also not protected as private, there is no basis for refusing to disclose this. My oped goes no further than that.
I also believe that so long as there is no legal requirement for secrecy, disclosure is important. Voters should have the information and it certainly can be relevant to their appraisal of a candidate.
Thanks again for writing!
From: email@example.com [mailto:firstname.lastname@example.org]
Sent: Tue 5/5/2009 10:06 AM
To: Chemerinsky, Erwin
Subject: Legal ethics prof disagree with your op-ed re confidentiality
I teach legal ethics as an adjunct lecturer at UC-Berkeley and Stanford, and will teach this summer at Santa Clara. (I mention that only as credentials and not to suggest that I speak for those institutions.)
At the legal ethics blog I co-founded, three legal ethics professors and two adjuncts (including me) have concluded that your LA Times op-ed about Carmen Trutanich makes a common and serious mistake in its analysis of the duty of confidentiality: it equates it with privilege. We all concluded that there is indeed a significant duty of confidentiality at play here, as well as a right of privacy. The critical analysis is in the comments:
Most of us concede that there is also a legitimate issue of the public's right to know, so we do not disagree with 100% of your article. But, at a minimum, there is no basis to accuse Trutanich of "stonewalling."
John Steele, Attorney at Law
2225 E. Bayshore Road; Suite 200
Palo Alto, CA 94303-3220