The Los Angeles County Bar Association Professional Responsibility and Ethics Committee recently issued an advisory opinion considering the repercussions for an attorney who communicates sensitive information to an online “catfish” –otherwise known as an individual who assumes a false identity in order to elicit sensitive information or otherwise defraud an unsuspecting person.
The committee concluded that although an attorney may believe that his online disclosures are “innocuous,” the “lawyer’s unguarded disclosure of client information might result in violations of the duties of competence and confidentiality and might cause the loss of the lawyer-client privilege and work product protection.”
In the advisory opinion, the committee analyzed a scenario where an attorney communicated with a person online who claimed to be working in a “non-legal industry.” During their conversation, the attorney mentioned pending interviews with witnesses in an ongoing litigation, including information like the location of a witness and the subject of an expert’s expected testimony. The attorney was unaware that the person he was corresponding with was “actually associated with the opposing side of a pending case in which [the] attorney represents [the] client and is ‘catfishing.’”
In a detailed analysis of online “catfishing” and the “interplay of advancing technology and the lawyer’s professional responsibilities,” the committee reasoned that though the “incautious” online activity did not rise to the level of a full waiver of evidentiary privilege, the disclosures were enough to allow a person familiar with the litigation to “identify the witnesses and the significance of [the] attorney’s disclosure.” As such, the committee concluded that the scenario constituted a breach not only of the professional rules related to competence and confidentiality, but also a breach of the California Business and Professions Code 6068(e)(1), a state statute which obligates each attorney to preserve client “secrets.”
Read the full opinion here.
