Can you trust your attorney? Most people think attorneys are the least trustworthy group around. But despite the jokes, an attorney is not like a used car salesman. As a group, we take our obligations pretty seriously, because if we violate them we can lose our licenses. One big category of our ethical obligations is our fiduciary duty to clients. These duties include the duties of loyalty, confidentiality, disclosure, competence, and others. We voluntarily undertake these duties specifically so that clients can trust us to act on their behalf.
Trusting Your Attorney’s Loyalty
Unlike real estate agents, attorneys can never work for both sides. If they do so intentionally, they would almost surely be disbarred! We all have the duty of highest loyalty to our client. That said, attorneys can cooperate with the other side to get things done. Your attorney just can’t work against you or give away your advantages. Don’t let common courtesy and fair play destroy your trust in your attorney. For example, granting the other side an extension because they were on vacation is normal.
Once, a potential client came to my office. He wanted to know if he had a case against the local police department. I listened to his story, and gave my opinion that he had a good case. The client went home and googled me, and learned that I used to be a prosecutor. He worried that I would be on the side of the police, and that fear destroyed his trust in me. He didn’t hire me. That incident really brought home to me how suspicious many people are of lawyers.
Public defenders have to fight similar suspicions. Clients fear that because the defender is paid by the same government that is prosecuting them, their loyalty is compromised. Usually, nothing could be further from the truth. I would rank public defenders as the attorneys who least like and trust the opposing side (prosecutors), and the least likely to cooperate with them.
Trusting Your Attorney To Keep Your Secrets
We lawyers take an oath when we are sworn in as members of the state bar in California. Part of that oath is that we will preserve the secrets of our clients “at every peril to [ourselves].” Cal. B & P Code § 6068. This means that no matter what, we cannot reveal attorney-client privileged communications. I’ve personally watched a lawyer go to jail rather than reveal her client’s confidential information to a judge. http://www.latimes.com/local/lanow/la-me-ln-chp-beating-attorney-contempt-20150303-story.html
The only exception to this rule is if you tell your attorney you will commit a crime. Not just any crime either. It has to be a crime that will result in death or serious bodily injury. Even then, your attorney may decide not to report it. If she decides to report, she must first try to dissuade you, and inform you of her decision to report.
Trusting Your Attorney to Be Truthful With You
Your attorney must disclose important information to you because of the duty of candor. Your attorney must explain the pros and cons of any recommended course of action. They also must tell you about other reasonable options. If the other side makes a settlement offer or demand, your attorney has to tell you the terms immediately. Also, if your attorney obtains other facts or information that would be important, they have to disclose those facts to you. Your attorney may never lie to you about your case.
Trusting Your Attorney to Be Competent
Your attorney has to act with the appropriate care and skill on your behalf. For example, I’m a litigator. If my client needs a will and trust drawn up, I basically have to refuse. Same thing with a death penalty case. If I don’t get someone who is competent in those areas to help me, I can’t do those jobs. Even in ordinary litigation, I still have to exercise ordinary care in every case and make sure I’m litigating properly. If I get sick and can’t focus on my cases, I need to withdraw or find someone to help me.
The only exceptions are in a true emergency, if no one else is available. For example, assume I am the only private attorney in a rural town. I might be required to defend a death penalty case even without experience if no one else can do it. Or, let’s say I happen to be present when someone is dying before my eyes. If they are able to make their last wishes known to me, I could try to write up their will on the nearest sheet of paper. Even if I do it wrong, the thinking goes, it’s better than nothing.
General Fiduciary Obligations
Fiduciaries must generally act in their client’s best interests. They may not engage in self-dealing or misappropriate client funds. There are many breaches of fiduciary duty that all involve somehow working against the client, or neglecting to do the right thing. Acting as a fiduciary requires a very high standard of behavior. This provides a very strong layer of protection precisely so that people can feel safe trusting their attorneys.
Obviously, every individual is different and you cannot trust every attorney simply by virtue of their license. Every situation and relationship is different and you should pay attention to what your logic and gut tell you. But overall, as a profession, we have very serious obligations to our clients that should help put your mind at ease.