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August 9, 2012

Attorney Eric Parkinson: what you should know about the attorney-client relationship

by Eric Parkinson, Attorney and Counselor at Law

In my 19 years of practice as an attorney, I have learned that most clients have little understanding about the nature of the attorney-client relationship and, more specifically, about the specific duties attorneys owe their clients.  In this post, I will explain a bit about the way the law views the relationship so that clients can become more aware of their rights and be better consumers of legal services.

The relationship between an attorney and client is one of upmost trust and confidence and is often referred to as being “fiduciary” in nature.  In general, what this means is that the attorney is required to act in the best interests of his/her client with regard to the specific matter for which the attorney is providing representation.  The specific responsibilities stemming from the fiduciary nature of the relationship are defined primarily by the California Rules of Professional Conduct and laws enacted by the Legislature that are contained in the California Business and Professions Code and the California Evidence Code; three of the most important of these responsibilities are as follows.

Confidentiality

The law provides quite clearly that it is an attorney’s duty “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”  This duty of confidentiality, which recognizes the high level of trust reposed by the client, is virtually absolute and is very broad in scope.  It even extends to potential clients seeking the attorney’s advice or assistance even if the attorney is ultimately not retained, and it continues after termination of the attorney-client relationship and even after the client’s death.  The duty to protect the client’s secrets is not limited to the information communicated in confidence by the client but also applies to all information relating to the client’s representation, whatever the source of the information may be.

In in short, information gained by an attorney in the course of his/her relationship with a client must, by law, remain forever confidential.

 

The Lawyer-Client Privilege

The lawyer-client privilege, sometimes referred to as the “attorney-client privilege,” is more limited than the ethical obligation of a lawyer to guard the confidences and secrets of his/her client.  It is an evidentiary privilege that prevents a party in a lawsuit or other proceeding from obtaining confidential information an attorney receives from or conveys to his/her client. The privilege applies to confidential communications between lawyer and client as well as to legal opinions formed by counsel even if the opinions have not been transmitted to the client.  There is no protection, however, for conversations held in the presence of others whose attendance was not essential to further the client’s interests.

The California Evidence Code provides that the “holder” of the lawyer-client privilege – that is, the person the privilege was designed to protect – is the client, but a lawyer is required to assert the privilege on behalf of a client whenever disclosure of the communication is sought.

A very important rule to remember is that a client may waive the lawyer-client privilege if s/he, without coercion, has disclosed a significant part of a confidential communication or has consented to disclosure by anyone else.  For example, if a client repeats legal advice s/he receives from an attorney to a friend, then arguably the lawyer-client privilege has been waived with respect to the information disclosed.  Clients are, therefore, advised to remember not to repeat to anyone else the substance of any communications conducted with his/her attorney.

 

Conflicts of Interest

Another important responsibility attorneys have toward their clients is the avoidance of conflicts of interest.  A conflict of interest exists when a lawyer’s duty on behalf of one client obligates the lawyer to take action prejudicial to the interests of another client – that is, “When in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”

A conflict of interest – sometimes referred to as an “adverse interest” – often exists where the attorney’s own personal or financial interest would be substantially affected by the client’s claim. One example of an adverse interest would be in agreement that gives the attorney an ownership interest in the client’s business (e.g., stock) in lieu of a monetary fee.

It is important for every client to understand the legal nature of the relationship with his/her attorney so they can make certain that the attorney complies with his/her ethical and legal obligations and acts to protect the client’s rights at all times.

 

 

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