What must a lawyer do to keep a shared secretary or other nonlawyer staff from disclosing client confidences, and what happens after a leak occurs?

Currency note

This opinion was issued in 1979, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rules 6-101 and 2-111 and Business and Professions Code section 6068, subdivision (e), areas now addressed by Model Rules 1.6, 5.3, and 1.16 and California Rules 1.6, 5.3, and 1.16. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, or standard mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee addressed a suite-sharing arrangement: Attorneys Red and Blue rented space from Attorney White, a secretary employed by Blue was used by Red (who paid Blue for the work), and the secretary disclosed to Blue information about a competitive bid prepared for Red and White. The disclosure appeared accidental and presumably involved confidential information. The committee was asked what preventive steps the attorneys were ethically required to take and whether notice to the clients and withdrawal were required.

The committee began from the duty to preserve client confidences and secrets, mandated by Business and Professions Code section 6068(e) and ABA Canon 4, and noted that Disciplinary Rule 4-101(D) requires an attorney to exercise reasonable care to prevent employees and others whose services are used from disclosing client confidences. It concluded that all the attorneys were obligated to prevent the disclosure: a shared-secretary arrangement carries a potential for harm even when economically necessary, so each attorney benefiting from it must protect the clients' confidences and be prepared to withdraw if leaks result. The committee said Blue, having hired the secretary, should have explicitly defined the confidentiality obligations, and Red and White should have raised the issue with the secretary and with Blue before using the secretary on the bid. It analogized the situation to using an outside service such as a computerized accounting firm, quoting ABA informal opinion No. 1127 (1970) that whoever handles the material must preserve the client's confidence.

On the consequences of a leak, the committee concluded that the attorneys had a duty to investigate and ascertain the extent of the disclosure, and that if the effect was harmful to Red and White's client, all the attorneys were obligated to advise their respective clients of the leak (but not its details). It found no obligation to notify the property seller, who was not a client. The committee identified an apparent violation of former Rule 6-101 and possible incompetence under DR 6-101(A)(3), observed that a member cannot limit liability for personal malpractice under former Rule 6-102, and concluded that, even though Blue's client may have been benefited rather than harmed, the appropriate course was for all the attorneys to disclose the problem to their clients and withdraw from further employment under former Rule 2-111(A)(2).

Common questions

Q: Does a lawyer have a duty to make sure a secretary keeps client information confidential?

A: Yes. The committee concluded that attorneys must take steps to ensure secretaries and other nonlawyer employees understand their obligation not to disclose client confidences, relying on Business and Professions Code section 6068(e) and DR 4-101(D), which requires reasonable care to prevent employees from disclosing confidences.

Q: Who is responsible when a shared secretary leaks confidential information?

A: The committee concluded that all the attorneys benefiting from the shared-secretary arrangement had a duty to prevent the disclosure; the lawyer who hired the secretary should have defined the confidentiality obligations explicitly, and the others should have raised the issue before using the secretary on the confidential work.

Q: After a harmful leak, does the lawyer have to tell the client and withdraw?

A: Yes. The committee concluded that the attorneys had to investigate the extent of the disclosure, advise their clients of the leak (without the details), and withdraw from further employment under former Rule 2-111(A)(2).

Q: Does the duty to disclose extend to a non-client affected by the leak, such as the seller?

A: No. The committee found no ethical obligation to notify the property seller, because he was not a client of any of the attorneys.

Background and rules framework

The opinion interprets former Rules 6-101 (competence) and 2-111 (withdrawal) of the California Rules of Professional Conduct, along with former Rule 6-102 (limiting malpractice liability) and Business and Professions Code section 6068, subdivision (e) (duty to preserve client secrets). It draws on ABA Canon 4 and Disciplinary Rules 4-101(D) and 6-101(A)(3). The duty to safeguard confidences against disclosure by nonlawyer staff is now addressed by Model Rules 1.6 and 5.3 and their California counterparts, and the withdrawal obligation by Model Rule 1.16 and California Rule 1.16.

Citations and references

Rules of Professional Conduct:

• Former California Rules 6-101 (competence), 6-102 (limiting malpractice liability), and 2-111(A)(2) (withdrawal)
• ABA Code of Professional Responsibility, Canon 4; Disciplinary Rules 4-101(D) and 6-101(A)(3)

Statutes:

• California Business and Professions Code section 6068, subdivision (e)

Other opinions cited:

• State Bar Committee on Professional Responsibility and Conduct Opinion No. 1971-25
• ABA Committee on Ethics and Professional Responsibility, informal opinions Nos. 1127 (1970), 1235, and 1364 (1976)
• Philadelphia Bar Association Committee on Professional Guidance Opinion No. 17 (1948)

See also

• CA Ethics Op. 1971-25: Outside Data-Processing of Client Billing
• CA Ethics Op. 1977-46: Council-Member Lawyer Representing Clients Against the City

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1979-50.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1979-50

ISSUE:

What ethical obligations exist when client confidences may be disclosed or are disclosed by a secretary/nonattorney employee?

DIGEST:

Attorneys must take steps to insure that secretaries and other nonattorney employees understand their obligation not to disclose client confidences or secrets. Failure to guard against such disclosures may result in professional liability and the requirement to disclose to the client and withdraw from employment.

AUTHORITIES INTERPRETED:

Rules 2-111 and 6-101 of the Rules of Professional Conduct.

American Bar Association Code of Professional Responsibility, Disciplinary Rules 4-101(D) and 6-101(A)(3).

Business and Professions Code section 6068, subdivision (e).

DISCUSSION

The Committee has been asked what ethical problems or obligations are present in the following circumstances: Attorneys Red and Blue each rent space in a suite owned by Attorney White. A secretary employed by Attorney Blue is frequently used by Attorney Red, who pays Attorney Blue for the secretarial services. In the course of the secretary's special employment, the secretary divulges to Attorney Blue information regarding a competitive bid on property prepared for Attorneys Red and White. It is not clear how harmful the disclosure was but the information was presumably confidential. Apparently there was no plan or effort on the part of Attorney Blue to procure this information; rather, the disclosure could be described as unintended or accidental.

The inquirer asks: (1) What preventive steps are any of the attorneys ethically required to take to minimize the risk of such disclosures? (2) Is notice to the clients and withdrawal as counsel ethically required?

DISCUSSION

A primary obligation in the attorney-client relationship is the duty to preserve the confidences and secrets of one's client. This obligation is mandated by California Business and Professions Code section 6068, subdivision (e), and canon 4 of the American Bar Association Code of Professional Responsibility. Disciplinary Rule 4-101(D) specifically extends this duty by requiring that the attorney "exercise reasonable care to prevent his employees, associates, and others whose services are utilized by him from disclosing or using confidences or secrets of a client, ..." More generally, the California Rules of Professional Conduct state that a lawyer "shall not wilfully or habitually fail to use reasonable diligence and his best judgment in the exercise of his skill... to accomplish ... the purpose for which he is employed." (Rule 6-101, Rules Prof. Conduct.)

The hypothetical situation presented indicates that all the attorneys were under an obligation to prevent the stated disclosure by the secretary. A situation where a secretary is shared contains the potential for harm to clients, even though it may be economically necessary or desirable. Accordingly, because of the benefits of this arrangement to all of the attorneys, they each have a duty to preserve the confidences of the respective clients; they act at their peril and should be prepared to withdraw in the event of leaks resulting from this arrangement. Blue, having hired the secretary, should define explicitly what obligations exist with respect to confidentiality and employment by other lawyers. Similarly, attorneys Red and White should have discussed this issue with the secretary and with Blue prior to hiring the secretary to prepare the bid.

Taking such precautionary steps can be analogized to the circumstances of a lawyer using the services of an outside professional service, e.g., a computerized accounting firm, as part of the rendering of legal services. Particularly when such a firm may handle other law firms or serve clients represented by other attorneys, care must be taken to prevent disclosure of confidences. As stated in informal opinion No. 1127 (1970) of the Committee on Ethics and Professional Responsibility of the American Bar Association:

"The key is that whoever it is that is handling the material, whether or not he is a formal employee of the law firm or an employee of a contractual agent of the law firm, must preserve the confidence of the client, and in each instance, of course, there is some risk.

Therefore, so long as the arrangements are made that the material be kept in confidence . . . we can see no violation of the Canons of Ethics."

(See also opn. No. 1971-25 of this Committee and ABA Committee on Ethics and Prof. Responsibility, informal opn. No. 1364 (1976) [may not be mandatory to notify client in advance before giving client information to data processing firm for bookkeeping] and ABA Committee on Ethics and Prof. Responsibility, informal opn. No. 1235 [use of common library and clerical facilities may impose a burden to assure that disclosures not made]; cf. Philadelphia Bar Assn. Comm. on Prof. Guidance, opn. No. 17 (1948) [two lawyers having same suite should avoid representation of parties having actual adverse interests].)

Assuming a failure to take precautionary steps and the subsequent disclosure about the bid, the attorneys have an obligation to investigate and ascertain the extent of the disclosure. Assuming further that the effect of disclosure was harmful to Red and White's client, all the attorneys were obligated to advise their respective clients of the "leak" but not the details thereof. No ethical obligation exists with respect to notifying the seller of the property, as he is not a client of any of the attorneys.

In this instance, an apparent violation of rule 6-101 of the Rules of Professional Conduct is present. Further, the attorneys may have acted incompetently by "neglecting a legal matter entrusted to [them]." (ABA Code of Prof. Responsibility, DR 6-101(A)(3).) A member of the State Bar cannot attempt to limit his liability for personal malpractice (rule 6-102, Rules Prof. Conduct), and disclosure is required here, much as it is required when a lawyer negligently permits the statute of limitations to run on his client's cause of action. Canon 1 of the American Bar Association Code of Professional Responsibility requires that all lawyers "assist in maintaining the integrity and competence of the legal profession," and American Bar Association Code of Professional Responsibility, Ethical Consideration 15, speaks of "high standards of professional conduct." Despite the fact that Blue's client in fact may be benefited rather than harmed, the appropriate course of action is for all attorneys to disclose the problems to their clients and to withdraw from further employment, pursuant to rule 2-111 (A)(2) of the Rules of Professional Conduct.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.