2014 Formal Ethics Opinion 1: Protecting Confidential Client Information When Mentoring
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View the Formal Ethics Opinion in Full Here
A formal ethics opinion titled “Protecting Confidential Client Information When Mentoring” was originally proposed on July 14, 2014. At its February 1, 2016 meeting, the State Bar adopted this opinion. 2014 FEO 1 considers issues related to confidentiality and the attorney-client privilege when an lawyer is mentoring a law student. This does not apply to students who are serving as interns/clerks in the same firm as the attorney who is serving as a mentor.
This opinion states that an attorney may allow a mentee law student to observe confidential client consultations between the lawyer and the lawyer’s client as long as the student signs a confidentiality agreement and the lawyer’s client gives his or her informed consent, signed and confirmed in writing, if the presence of the mentee law student will not waive the attorney-client privilege or such a potential waiver will not cause detriment to the client’s interests.
This applies, too, to lawyers who are being mentored by another lawyer in a different law firm. In such a situation, the lawyer performing the consultation must consider the effect of the observing lawyer’s presence, and if it is concluded that the attorney-client privilege will not be waived by the presence of the other lawyer, or a potential waiver of the privilege will cause minimal or no detriment to the client’s interests. If such determinations are made, the lawyer mentor may ask for consent of the client and the client’s informed consent must be signed and confirmed in writing.
When a lawyer-mentee asks for advice from a lawyer-mentor as to the representation of a client of the lawyer-mentee, the lawyer should try to obtain guidance without disclosing identifying client information, unless the consultation is general and does not involve the disclosure of identifying client information as no confidential client information is at danger. If the inquiry/advice is regarding compliance with ethics rules, no consent is necessary. If the inquiry/advice is regarding a client, a hypothetical is not practical, or inquiring risks disclosure of information relating to the representation, the lawyer-mentee must comply with the requirements set out above (analysis of whether consent of client is necessary and plausible for such an inquiry to be made). The lawyer-mentee and the lawyer-mentor should avoid creating a conflict of interest with any existing of former clients by virtue of the mentoring relationship.
