Protecting Confidential Client Information when Mentoring [Proposed 2014 Formal Ethics Opinion 1]
How to maintain client confidentiality within the context of mentor-mentee relationships.
View proposed ethics opinion in full here
At its January 23, 2014 meeting, the Ethics Committee voted to publish 2014 Formal Ethics Opinion 1 for comment. The opinion addresses how lawyers are to maintain client confidentiality within the context of mentor-mentee relationships. Mentorships are growing in popularity and have become even more important for those connected to the legal profession. For instance, in 2013, Campbell Law launched its own school-organized “Campbell Law Connections Mentor Program.” The proposed opinion addresses not only programs such as Campbell Law Connections but also mentorships between practicing lawyers.
Law Student Mentees
The proposed opinion holds that a lawyer may allow a law student mentee to observe confidential client consultations “so long as the student signs a confidentiality agreement and the lawyer’s client gives his or her informed consent, confirmed in writing.” In seeking the client’s informed consent, the lawyer must explain to the client the effect that the student’s presence may have on the attorney-client privilege. Additionally, the lawyer must not ask for the client’s consent unless (1) the law student’s presence will not constitute waiver of the privilege, or (2) if there is a waiver, the waiver “will cause minimal, or no, detriment to the client’s interests.”
Consider a mentorship relationship between two practicing attorneys: Lawyer A, the mentor, and Lawyer B, the mentee. Similar to the situation involving the presence of a law student mentee, Lawyer A must likewise consider the impact of Lawyer B’s presence on the attorney-client privilege. As with the student mentee, Lawyer A must obtain the client’s informed consent, confirmed in writing. An additional requirement in the Lawyer A-Lawyer B scenario is that Lawyer A must obtain an agreement from Lawyer B that Lawyer B will “maintain the confidentiality of the information as well as an agreement that [Lawyer B] will not engage in adverse representations.”
The proposed opinion also provides guidance to Lawyer B, in the event Lawyer B seeks advice from Lawyer A in the course of representing a client. First, Lawyer B “should try to obtain guidance without disclosing client information” (e.g. using a hypothetical). Before disclosing confidential information, Lawyer B must obtain client consent. Client consent is not necessary, however, where Lawyer B seeks Lawyer A’s advice merely to secure legal advice about Lawyer B’s compliance with the Rules of Professional Conduct (see comment 10 to Rule 1.6).
Per the proposed opinion, Lawyer A and Lawyer B should be careful to avoid creating a conflict of interest with current or former clients by virtue of the mentorship relationship.
Prohibition on Subpoenas of Law Student Mentees, Lawyer Mentees, and Lawyer Mentors
Finally, the proposed opinion notes that other lawyers are “prohibited from subpoenaing a law student, lawyer-mentee, or lawyer-mentor to obtain information about a client consultation in which the attorney-client privilege may have been waived because of the presence of such third parties.” In instituting such a prohibition, the proposed opinion notes the importance of mentor-mentee relationships. The opinion warns that allowing such subpoenas could result in a chilling effect that would discourage lawyers from participating in important mentoring relationships. The proposed opinion warns that a subpoena in this situation would be “prejudicial to the administration of justice,” thus violating Rule 8.4(d) of the North Carolina Rules of Professional Conduct.
If you wish to respond or otherwise offer a guest contribution discussing this proposed ethics opinion, please contact the ethics editor at email@example.com.