by Jeanne M. Huey
Two heads are better than one, or so the saying goes, and lawyers love to talk about legal problems and issues. Naturally there are rules about what we can and cannot say when we are talking to lawyers outside our own firm. We cannot mention a client by name, or mention case specific facts because we could easily run afoul of the prohibitions against revealing client confidences found in Texas Disciplinary Rule 1.05 or even unwittingly help an opponent. But otherwise, turning to others for their opinions and experience is a good thing for our clients because they get the benefit of knowledge we do not have and perhaps could obtain only at considerable cost.
Unfortunately, in the information age, brainstorming legal problems with other lawyers has become much more complicated. A new Texas Ethics Opinion (No. 673, August, 2018) recognizes the value of turning to others outside of our own firm for information and advice, but also cautions that this requires careful thought, and it is likely that what we can and cannot say without revealing client confidences is actually very limited.
Let us start with the basics. Confidential information under Rule 1.05 is not limited to information that is “secret” or “privileged”, and the most recent opinions at the state and national level all affirm that everything we learn in connection with representing a client is confidential—including information that is public.
That is one consideration. The other is the widespread availability of information that in the past would have been hard to find. Any lawyer with the right local district court or Pacer account can learn in a few minutes the names of all the pending cases in which we appear as an attorney of record and the names of our clients in those cases.
Recognizing that getting information from other lawyers outside our own firm may be helpful to our clients, Opinion 673 observes that existing exceptions to the strict rule of confidentiality allow disclosing confidences for the benefit of the client if we have client consent or if it can be implied. That seems to leave a good deal of room for brainstorming questions with our trusted lawyer friends or online lawyer group if we assume the client just does not want its name associated with the question. As the Opinion notes, generally, a question about the law or statute itself—without any attendant facts—will not result in the disclosure of confidential information. But that is rarely the kind of question that lawyers want to discuss.
And therein lies the problem. The more interesting the question, the more likely it is that it can be tied to a specific pending or threatened lawsuit. Moreover, in business litigation as in other specialized practice areas, the lawyers with the most expertise relevant to us and our clients are also the ones most likely to be our opponents. The phrase “I’ve got a case with a tricky problem of removal jurisdiction” is enough by itself to tell an opposing lawyer something about our strategy and concerns, and give them all they need to find the case and client if they are so inclined.
There are other ways to get feedback from lawyers outside the firm and protect our client’s confidential information. After all, the best opinions are going to come from those that have a fully formed view of the facts of our client’s case, and maybe even have past experience in the particular area of law involved. Those lawyers can be hired and paid for an hour or two of their time if we want their advice, which will keep everything we tell them and their advice both confidential and privileged.
In theory, as in Opinion 673, there are exceptions to the rule protecting client confidences that allow us to seek casual advice from lawyers outside our own firm. In practice it may be almost impossible if we understand the risks involved, including the extent to which the lawyer to whom we put the question is or will become adverse. The realities of what any other lawyer outside of our firm can learn about our clients and cases from our posing hypotheticals or even small talk over coffee suggest that we need to be very cautious when seeking advice or feedback of this type.
For full details of the new ethics opinion, log on to www.legalethicstexas.com/Ethics-Resources/Opinions/Opinion-673.
Jeanne M. Huey is the Managing Partner at Hunt Huey PLLC and can be reached at firstname.lastname@example.org.