March 22, 2011
The Answer Is No Answer (Respectfully)
The San Diego County Bar Association has a recent ethics opinion on the dilemma faced by a defense attorney questioned by a judge about a non-appearing client:
Analyzing all of these rules and ethics opinions, we conclude that in California, Attorney is not able to answer the judge’s question either way. She is not able to be dishonest with the court due to her duty of candor, and she is not at liberty to disclose the information imparted to her by Client’s mother the night before, because even though that information was not relayed to her by her client and therefore is not protected by the attorney-client privilege, it nonetheless constitutes confidential information.
The more difficult issue is whether Attorney is permitted to say anything at all in response to the court’s question regarding whether she “had any idea why her client was not there.” If Attorney answers in the negative, she is in violation of her duty of candor to the court per Rule 5-200 and Bus. and Prof. code section 6068(d) because she does have an idea, as relayed by Client’s mother the night before. If, however, Attorney answers “yes,” she arguably violates her duty of confidentiality under Cal. Bus. and Prof. code section 6068(e) because that answer would cause a harmful inference to be drawn to the detriment of her client, thus violating Attorney’s duty not to reveal client confidential information. Certainly if there were an exculpatory and unexceptional [see parenthetical note] reason Attorney’s client was not in court, Attorney would be free to reveal that information, because it would not qualify as information “which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client” (Cal. State Bar Formal Op. 1993-133 [citing Cal. State Bar Formal Opn. Nos. 1980-52 and 1981-58]).
Under our facts, Attorney’s only ethical option is to inform the court respectfully that due to applicable ethical rules she is not at liberty to answer the question.
Hat tip to Wally Mlyniec for passing this along. (Mike Frisch)
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