The Importance of Knowing Who Is, and Who Is Not, Your Client

• Publication year: 2019
• Author: Neil J. Wertlieb

The Importance of Knowing Who Is, and Who Is Not, Your Client

Neil J. Wertlieb

Neil J. Wertlieb is an experienced transactional lawyer, educator, and ethicist, who provides expert witness services in disputes involving either business transactions and corporate governance or attorney malpractice and attorney ethics. He is a Founding Member and Co-Chair of the California Lawyers Association Ethics Committee. For additional information, see www.WertliebLaw.com.

Lawyers must be able to identify who is, and who is not, their client to comply with their professional obligations. Lawyers owe fiduciary duties to their clients,¹ including the duties of loyalty and confidentiality, which the California Supreme Court considers to be the most fundamental qualities of the attorney-client relationship.² These duties to the client are embodied in the California Rules of Professional Conduct (the "Rule(s)"), most notably in Rule 1.6 (Confidential Information of a Client) and Rule 1.7 (Conflict of Interest: Current Clients).

Rule 1.6, together with California Business and Professions Code section 6068(e)(1), obligates a lawyer "to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client,"³ "unless the client gives informed consent."⁴ To comply with this mandate, a lawyer must be able to identify his or her client to ensure whose confidences and secrets are to be protected, and to ensure that the proper person authorizes any disclosure of such information.⁵

Rule 1.7 provides,

[A] lawyer shall not, without informed written consent from each client [...], represent a client if the representation is directly adverse to another client in the same or a separate matter [or] if there is a significant risk the lawyer's representation of the client will be materially limited by the lawyer's responsibilities to or relationships with another client, a former client or a third person, or by the lawyer's own interests.⁶

To comply with Rule 1.7, and avoid impermissible conflicts of interest, lawyers must also be able to properly identify their clients.⁷

Similarly, the conflict of interest rule pertaining to former clients, Rule 1.9 (Duties to Former Clients), requires a lawyer to identify his or her former clients:

"A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed written consent."⁸

Other Rules also require a lawyer to be able to properly identify the client. For example: Rule 1.8.10 (Sexual Relations with Current Client) generally provides that "a lawyer shall not engage in sexual relations with a current client," subject to certain specified exceptions; Rule 1.4 (Communication with Clients) requires that a lawyer "keep the client reasonably informed about significant developments relating to the representation;" Rule 1.8.1 (Business Transactions with a Client) provides that "a lawyer shall not enter into a business transaction with a client" unless certain specified conditions are satisfied; and Rule 1.8.3 (Gifts from Client) generally provides that "a lawyer shall not [...] solicit a client to make a substantial gift, including a testamentary gift, to the lawyer."⁹

Certain Rules also require a lawyer to be able to determine who is not a client of the lawyer. For example, Rule 1.8.6 (Compensation from One Other than Client) mandates that "a lawyer shall not [...] accept compensation for representing a client from one other than the client," unless certain specified conditions are satisfied.¹⁰ Rules 4.2 (Communication with a Represented Person) and 4.3 (Communicating with an Unrepresented Person) generally restrict a lawyer's communications with a non-client. Rule 7.3 (Solicitation of Clients) generally provides that "a lawyer shall not solicit professional employment" from a non-client unless certain specified conditions are satisfied.

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