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Question regarding attorney/client privileged info when it comes to substituting in a new attorney. Was this ethical?

Hayward, CA |

I retained an attorney to handle 2 family law cases that by all accounts should have been made "related" but never were. After several major mis-steps by original counsel (and at the recommendation of CalBar), I filed a formal complaint and substituted in new counsel who agreed to move forward with the 2nd case. At the time new counsel was retained, 1st case had been heard/disposed, and ex was on record as pro per for 2nd case. I've since learned is that on the date retained, MY NEW counsel INITIATED contacted the attorney they'd subbed in for & with info in hand, INITIATED contact with the attorney EX HAD RETAINED for that 1st hearing, 1st case (unrelated & since disposed). Legal strategy was subsequently divulged to opposing party via atty not of record & legal games ensued @ my expens

Attorney Answers 4


  1. Okay this one was hard to follow.

    I'll simplify what I think are the facts. You had lawyer 1. Lawyer one messed up so you fired that one and hired Lawyer 2. Number 2 contacted the ex-spouse's lawyer from case 1 and also contacted your former attorney; and then divulged legal strategy somehow to your ex-spouse through her lawyer in case 1 or your ex lawyer in case 1 and 2.

    Answer: unless this was YOUR legal strategy that you divulged to lawyers 1 and/or 2, it would be lawyer 2's work product. If its lawyer 2's work product, then he can divulge it if he chooses.

    If you devised the strategy and simply instructed your lawyer to follow it, that would be attorney-client privileged information as it is a communication to your lawyer. If he or she devised it as the lawyer, then strategy could be divulged.

    The thing is, and you probably know this, in the world of pleadings, you are required to divulge your claims and defenses. So you have to allege sufficient facts to support a cause of action or a defense.

    Your question is unclear because the nature of the matter revealed is what counts. Was it some secret fact or piece of evidence you intended to use in order to impeach your ex-spouse? Is this something the ex-spouse knows about anyway?

    All good questions but your narrative is missing a lot of important information.

    Also, in an ethics situation, the bar and most judges usually require clear and convincing evidence of some kind of ethics breach. So that is something to bear in mind if you file complaints with the bar.

    Other than that it would be hard to understand exactly what was divulged. Divulging strategy is sometimes effective in forcing a settlement to the case.

    And finally, lawyers have the right to make strategic decisions, rather than substantive ones. So failure to consolidate two related cases may be a strategic decision, rather than a substantive one. Again I stress "may". Too many variables go into it.

    This is a public forum. Any questions or answers published here should not be construed as the giving or receiving of legal advice or the formation of any attorney-client relationship. You should consult with a competent attorney in the jurisdiction where your legal issues are pending and get good, solid legal advice. This being a public forum, those answers you do read are merely given for informational purposes only.


  2. I am not a California attorney, but I will try to help you analyze the problem. I agree with many of attorney Elie's points, particularly the lack of clarity in your question. Its a complicated set of facts so that's ok. The issue I see here is not that your attorney discussed the first case. The reason is, that sometimes certain communications are implicit in the representation.

    The questions you should be asking are 1) did your attorney's actions exceed the authority implicit in the representation, and independently, 2) did your attorney's actions hurt your case.

    These are objective questions. As to Question 1, if the answer is yes than you may file a grievance with the California Bar Association. There is probably no way to recover money under on this issue. As to Question 2, if the answer is yes than you will have to determine if your attorney's actions failed to meet the standard of care for these kinds of cases in your geographic area. If so, and you can demonstrate a financial loss, you may be able to sue for damages. Only a professional malpractice attorney can make that call.

    I suggest that you think this over carefully, and if you still wish to pursue the matter, contact a California professional malpractice attorney.


  3. Like Attorney Elie, I am confused by your recitation. Despite that fact, Mr. Elie offers you excellent advice.

    The author of this answer is an Attorney-at-Law, licensed to practice law only in the state of Arizona. Unless both you and the author have signed a formal retainer agreement, you are not the author's client, and the author's discussion of issues does not constitute legal advice. Opinions expressed herein are solely those of the author, and are neither privileged nor confidential.


  4. There are way too many variables in your question. I would sit down with an Ethics attorney in your jurisdiction to evaluate. Mr. Elie's advice is good to follow as well.

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