Protecting Confidential Client Information When Mentoring
Adopted: February 01, 2016
Opinion encourages lawyers to become mentors to law students and new lawyers (“protégés”) who are not employees of the mentor’s firm, and examines the application of the duty of confidentiality to client communications to which a protégé may be privy.
Editor's Note: This opinion does not apply to law students certified pursuant to the Rules Governing the Practical Training of Law Students (27 N.C.A.C 1C, Section .0200) or to law students who are participating in formal law school pro bono programs, externship programs, and clinics in which students participate in client representation under the supervision of a lawyer. In addition, the opinion does not apply to lawyers, employees, or law clerks (paid or volunteer) being mentored or supervised by a lawyer within the same firm. This opinion addresses issues pertaining to informal mentoring relationships between lawyers, or between a lawyer and a law student, as well as to established bar and/or law school mentoring programs. Mentoring relationships between a lawyer and a college or a high school student are not addressed by this opinion because such relationships require more restrictive measures due to these students’ presumed inexperience and lack of understanding of a lawyer’s professional responsibilities, particularly the professional duty of confidentiality.
For a legal analysis of 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, see Berens v. Berens, No. COA15–230, 2016 WL 1569215 (N.C. April 19, 2016)(applying State v. Murvin, 304 N.C. 523, 284 S.E.2d 289 (1981)).
Inquiry #1:
May a lawyer who is mentoring a law student (“protégé”) allow the student to observe confidential client consultations between the lawyer and the lawyer’s client?
Opinion #1:
Yes, if the client gives informed consent.
The duty of confidentiality is set forth in Rule 1.6. It provides that all communications relative to a client’s matter are confidential and cannot be disclosed unless the client consents, the client’s consent is implied as necessary to carry out the representation, or one of the specific exceptions to the duty of confidentiality in Rule 1.6(b) applies. If a law student/protégé is not an agent of the lawyer for the purpose of representing the client, there is no implied client consent to disclosure of the client’s confidential information to the student. Moreover, none of the specific exceptions to the duty of confidentiality apply in this situation. Only the express informed consent of the client will permit disclosure of confidential client information to a law student/protégé.
“Informed consent,” as defined in Rule 1.0, Terminology, “denotes the agreement by the person to a proposed course of conduct after the lawyer has communicated adequate information and explanation appropriate under the circumstances.” Rule 1.0(f). Informed consent must be given in writing by the client or confirmed in writing by the lawyer. See Rule 1.0(c). In the mentoring situation, obtaining the client’s informed consent requires the lawyer to explain the risks to the representation of the client that will be presented by the law student’s knowledge of client confidential information and the law student’s presence during client consultations.
One such risk is the possibility that the law student, who is not subject to the Rules of Professional Conduct, will intentionally or unintentionally reveal the client’s confidential information to unauthorized persons. To minimize this risk, it is recommended that the law student be required to sign a confidentiality agreement that emphasizes the duty not to disclose any client confidential information unless the client and the lawyer give express consent.
The lawyer should also explain to the client any risk that the attorney-client privilege1 will not attach to client communications with the lawyer because of the presence of the law student during the lawyer’s consultation with the client. If the lawyer concludes that the student’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 student’s presence during the consultation.
Inquiry #2:
A lawyer wants to be a mentor to a new lawyer (“protégé”) who is not employed by or affiliated with the lawyer/mentor’s law firm. The lawyer/mentor wants to allow the new lawyer to observe his consultations with clients and he also wants to observe the new lawyer’s consultations with the new lawyer’s clients in order to critique and advise the new lawyer.
May the lawyer/mentor allow the lawyer/protégé to observe confidential client consultations between the lawyer/mentor and his client? May the lawyer/protégé allow the lawyer/mentor to observe confidential client consultations between the lawyer/protégé and his client?
Opinion #2:
Yes, these observations are allowed with the client’s informed consent. See Opinion #1. The observing lawyer should sign an agreement to maintain the confidentiality of the information of the other lawyer’s client, in accordance with Rule 1.6, and to avoid representations adverse to the client in accordance with Rule 1.7 and Rule 1.9.
Both the lawyer/protégé and the lawyer/mentor should avoid the creation of a conflict of interest with any existing or former clients by virtue of the mentoring relationship. For example, the lawyer/protégé should not consult with a lawyer he knows has represented the opposing party in the past without first ascertaining that the matters are not substantially related and that the opposing party is not represented in the current matter by the lawyer/mentor. Similarly, the lawyer/mentor should obtain information sufficient to determine that the lawyer/protégé’s matter is not one affecting the interests of an existing or former client. Rule 1.7 and Rule 1.9.
Inquiry #3:
When a lawyer seeks advice from a lawyer/mentor, what actions should be taken to protect confidential client information?
Opinion #3:
If possible, the lawyer/protégé should try to obtain guidance from the lawyer/mentor without disclosing identifying client information. This can often be done by using a hypothetical. If the consultation is general and does not involve the disclosure of identifying client information, client consent is unnecessary.
If the consultation is intended to help the lawyer/protégé comply with the ethics rules, client consent is not required because Rule 1.6(b)(5) allows a lawyer to reveal protected client information to the extent that the lawyer reasonably believes necessary “to secure legal advice about the lawyer’s compliance with [the Rules of Professional Conduct].” Pursuant to Comment [10] to Rule 1.6:
A lawyer’s confidentiality obligations do not preclude a lawyer from securing confidential legal advice about the lawyer’s personal responsibility to comply with [the Rules of Professional Conduct.] In most situations, disclosing information to secure such advice will be impliedly authorized for the lawyer to carry out the representation. Even when the disclosure is not impliedly authorized, paragraph (b)(5) permits such disclosure because of the importance of a lawyer’s compliance with the Rules of Professional Conduct.
If the consultation is for the client’s benefit, limited disclosure of client information may be “impliedly authorized to carry out the representation.” See Rule 1.6(a). The lawyer should only disclose client information to a colleague if the lawyer has determined that the confidentiality of the consultation is adequately protected. Once the lawyer makes that determination, the client’s express consent is unnecessary.
If the consultation does not involve advice about the lawyer’s compliance with the Rules of Professional Conduct, a hypothetical is not practical, or the consultation is not for the client’s benefit, the lawyer/protégé must obtain client consent. See Opinion #2.
Under all circumstances, the lawyer/protégé and the lawyer/mentor should avoid the creation of a conflict of interest with any existing or former clients by virtue of the mentoring relationship. See Opinion #2; Rule 1.7 and Rule 1.9.
Endnote
1. The attorney-client evidentiary privilege to avoid compelled testimony applies to client communications with a lawyer 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 N.C. 517, 444 S.E.2d 438 (1994).