This blog post is the fourth in a series of eight updated posts summarizing the ethical rules that come into play when a law firm outsources legal work to a freelance/contract lawyer. See Ethics Rule #1 (Conflicts of Interest), Ethics Rule #2 (Aiding and Abetting), and Ethics Rule #3 (Duty of Competence).
Freelance Lawyering Ethics Rule #4: Does a hiring lawyer violate his or her duty to preserve client confidences when he or she reveals confidential information to a freelance lawyer assisting on a project?
Take Away: All lawyers, including freelance lawyers, have the same duty to preserve all clients’ confidential information. When it is necessary for a law firm to provide confidential information to a freelance lawyer assisting on a matter, the freelance attorney bears the burden of non-disclosure regarding secrets learned during her involvement with the representation. The law firm has the obligation to screen the freelance attorney from client secrets unrelated or unnecessary to a particular project.
Every attorney has a duty to preserve their clients’ secrets. California Rule of Professional Conduct 1.6 states, in pertinent part, “A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent,* or the disclosure is permitted by paragraph (b) of this rule.” The rule has been applied broadly and has been interpreted to cover any information gained in the engagement that the client does not want disclosed, or the disclosure of which is likely to be embarrassing or detrimental to the client.
When a law firm uses a freelance attorney, it may need to disclose a client’s confidential information to the freelance attorney for the freelance attorney to adequately assist with the client matter. The freelance attorney bears the burden of non-disclosure regarding secrets learned during her involvement with the representation, while the law firm has the obligation to screen the freelance attorney from client secrets unrelated or unnecessary to a particular project. See COPRAC Opinion Nos. 1992-126, and 1993-133. See also Los Angeles County Bar Association Formal Opinion 518 (“LACBA Opinion 518”). Specifically, LACBA Opinion 518 states, “Confidential information can be disclosed to outside contractors so long as the outside contractors agree to keep the client confidences and secrets inviolate.” See also COPRAC Opinion 2004-165; ABA Model Rule 1.6.
Law firms should err on the side of caution and limit the information it shares with an outside attorney to that which is required to complete the task. Law firms may also consider a freelance attorney agreement that references the duty to maintain client confidences as set forth under the California Rules of Professional Conduct and/or the ABA Model Rules.
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