The California Attorney Rule: The Role of the Judiciary

The California Attorney Rule: The Role of the Judiciary

When it comes to crooked colleagues, California lawyers can remain silent if they want. But if they act—or if they should act—to expose them, the rules governing the conduct of other lawyers are not going to let them off the hook.

On the night of March 21, 2016, then-Attorney General Kamala Harris issued a court order prohibiting the public release of the “confidential attorney-client communications” of the state’s lawyers involved in various lawsuits. Among them were the federal and state cases against Wal-Mart Stores, Inc.; former Goldman Sachs executive Rajat Gupta; and Dina Powell, a former Wal-Mart executive who was indicted on charges of bribery and obstruction of justice. On the night before, the FBI had begun an investigation into the possible misuse of Wal-Mart’s proprietary information for personal gain, which was alleged to have occurred at least twice. And after the order, the state’s top appellate lawyer, Jon O’Gara, made public a confidential federal filing describing the nature of the investigation and the “intrusion on the attorney-client relationship” that would normally accompany such a request.

The Harris court order was the beginning of a battle, which ultimately led to an unprecedented trial of more than 300 defendants who are charged with numerous, complicated conspiracy and fraud charges. Although the case is over now, the episode has illuminated some of the most fundamental issues concerning the way California lawyers handle and protect confidential client information. Among them: the role of ethics rules, the proper scope of the lawyer-client privilege, the limits placed on government disclosures of confidential information, the proper level of protection for lawyers’ clients, and the role of the judiciary.

It’s true that there is no California attorney rule that directly addresses lawyers’ access to and management of confidential information, including client communications. But the California rules about “communications” do cover attorney-client communications, and the most sweeping language in the

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