Opinion #134. Supervisory Liability for Breach of Confidentiality
Issued by the Professional Ethics Commission
Date Issued: September 21, 1993
Bar Counsel has asked the Commission to render an opinion with respect to the following factual situation:
Attorney A is a partner in the firm of A, B, C, & D. The firm employs various clerical help in connection with its practice of law. In connection with the preparation of some documents for Attorney A on behalf of Client W, A’s secretary Z becomes privy to certain confidences of W. Z proceeds to share confidential information with persons outside the firm.
Does Z’s disclosure of confidential information subject A or her partners to discipline for violations of the Bar Rules?
The imposition of discipline for violations of the Bar Rules is necessarily a sanction against lawyers, and not their employees. However, a breach by A’s employee of the lawyer’s obligation to maintain confidences does not necessarily subject A to discipline under the Bar Rules. Rule 3.6(h)(2) requires a lawyer to:
. . . exercise reasonable care to prevent . . . employees . . . and others whose services are utilized by the lawyer from improperly disclosing or using confidences or secrets of a client.
Rule 3.6(h)(2) makes clear that lawyers have a responsibility to adequately train, monitor and discipline their non‑professional staff in such a manner as to guard against breaches by non‑lawyer staff. Failure to take reasonable steps to provide adequate training, to monitor performance and to apply discipline for the purpose of enforcing adherence to ethical standards is a proper grounds for concluding that the lawyer has violated Rule 3.6(h)(2) and for attributing the employee’s breach of these standards to the attorney and to those members of the firm who have supervisory responsibility for the employee. To hold otherwise would be to cut a great roadway through the Rule. Upon the facts set forth in the inquiry, there is no suggestion that Attorney A failed to exercise reasonable care to prevent improper disclosure by secretary Z.