(This article appeared in Journal 21,3, September 2016)
At its meeting on July 21, 2016, the Ethics Committee voted to revise the editor’s note for 2014 Formal Ethics Opinion 1, Protecting Confidential Client Information When Mentoring, an opinion that was adopted by the council on February 1, 2016. The editor’s note now cites a recent court of appeals opinion on whether a third party is an agent of the lawyer or the client such that the attorney-client privilege is not waived although the third party is privy to client-lawyer communications. The committee concluded that a lawyer should consider this appellate opinion when analyzing whether a protégé’s presence during a client-lawyer consultation will waive the attorney-client privilege. The court of appeals opinion is Berens v. Berens, No. COA15–230, 2016 WL 1569215 (N.C. April 19, 2016).
Berens v. Berens is an interesting case. In Berens, the North Carolina Court of Appeals considered whether the attorney-client privilege is waived when a person—who has been designated by the client as the client’s agent—participates in private communications between the lawyer and the client. The Berens court stated that an agency relationship arises when an agent has the express or implied authority to act for a principal and the principal has control over the agent.
Based on several unique factors, the Berens court held that an agency relationship did exist between the client and her friend/”personal advisor,” an inactive member of the State Bar, for the purpose of assisting the client in her litigation against her spouse. Because the friend was an agent of the client, her presence and participation in private communications between the client and her lawyer remained subject to the attorney-client privilege.
2014 FEO 1 offers no opinion on whether Berens supports the proposition that protégés are agents of their mentors or of their mentor’s clients. This omission is not inadvertent. Whether an agency relationship exists is a matter of agency law. The Ethics Committee opines on lawyers’ professional conduct as governed by the Rules of Professional Conduct. In general, the Ethics Committee will not respond to ethics inquiries that seek an opinion on an issue of law. 27 N.C.A.C. 1D § .0102(g).
Another issue of law raised by the inquiry in 2014 FEO 1 relates to the attorney-client privilege. Although the opinion examines the application of the ethical duty of confidentiality to communications to which a protégé may be privy, the opinion references—but does not determine—the effect the presence of a protégé may have on the attachment of the attorney-client privilege. Again, the omission is not inadvertent.
Ethics counsel receives numerous inquiries from lawyers regarding the attorney-client privilege as a consequence of lawyers’ misconception that the privilege is encompassed within the Rules of Professional Conduct. Although the concepts of confidentiality and attorney-client privilege are often used interchangeably, only the duty of confidentiality is governed by the Rules of Professional Conduct. See Rule 1.6. The attorney-client privilege is a matter of common law and the law of evidence. The Ethics Committee can only speak to the application of the Rules of Professional Conduct.
Another distinction between the ethical duty of confidentiality and the attorney-client privilege is that the privilege applies to a much narrower category of client information than does the ethical duty of confidentiality. Comment [3] to Rule 1.6 explains:
[3] The principle of client-lawyer confidentiality is given effect by related bodies of law: the attorney-client privilege, the work product doctrine, and the rule of confidentiality established in professional ethics. The attorney-client privilege and work-product doctrine apply in judicial and other proceedings in which a lawyer may be called as a witness or otherwise required to produce evidence concerning a client. The rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law. The confidentiality rule, for example, applies not only to matters communicated in confidence by the client, but also to all information acquired during the representation, whatever its source. A lawyer may not disclose such information except as authorized or required by the Rules of Professional Conduct or other law.
Privileged information is always confidential information, but confidential information may not be privileged. In general, a lawyer has an ethical duty to protect a client’s information under Rule 1.6(a). The duty of confidentiality “applies not only to matters communicated in confidence by the client, but also to all information acquired during the representation, whatever its source.” In contrast, client information is deemed privileged only if: (1) the relation of attorney and client existed at the time the communication was made, (2) the communication was made in confidence, (3) the communication relates to a matter about which the attorney is being professionally consulted, (4) the communication was made in the course of giving or seeking legal advice for a proper purpose although litigation need not be contemplated, and (5) the client has not waived the privilege. State v. McIntosh, 336 NC 517, 444 S.E.2d 438 (1994).
To reiterate, the attorney-client privilege is not governed by our professional rules. Neither is the attachment or the waiver of the privilege. For that reason, 2014 FEO 1 does not opine on any legal issues pertaining to the application/waiver of the attorney-client privilege.
The take away from 2014 FEO 1 is that individual lawyers participating in mentoring relationships have an ethical duty to research the law pertaining to the attorney-client privilege and determine whether—in their own professional judgment—the presence of a protégé in a confidential client consultation will jeopardize the attachment of the attorney-client privilege. The lawyer also has an ethical duty to discuss any potential risks with the client and seek the client’s informed consent to the protégé’s presence. As stated in 2014 FEO 1, “[i]f the lawyer concludes that the [protégé’s] presence will jeopardize the attachment of the privilege and the resulting harm to the client’s interests is substantial, the lawyer should consider carefully whether it is appropriate to ask the client to consent to the protege’s presence during the consultation.”
Formal and informal mentoring arrangements are an important part of a law student’s education as well as a valuable resource for newly licensed lawyers. 2014 FEO 1 encourages lawyers to become involved in mentoring programs, while reminding lawyers that their primary ethical duty is to their clients. It is important to note that issues pertaining to the waiver of the attorney-client privilege only arise with communications that otherwise would be protected by the privilege. As outlined above, the privilege only applies if the factors set out in State v. McIntosh are present. The representation of a client typically includes many activities that do not meet the McIntosh criteria, for example: real estate closings, court proceedings, and witness interviews. Therefore, there will generally be many opportunities for a protégé to observe and learn from a lawyer/mentor without implicating the attorney-client privilege.
Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.