Interlude 8B. The Ronald N. Gottschalk Matter and the Ethics of Confidentiality: A Test of Principle

The Gottschalk matter helps illuminate the ethical rules that should control professional services offered by nonattorney lawyers. Confidentiality law specifies two kinds of protection: attorney-client privilege and attorney-client confidentiality; the leading case on the distinction is Brennan's Inc. v. Brennan's Restaurants Inc. (5th Cir. 1979) 590 F.2d 168, 172 ["This broad ethical duty protects not only against disclosure of privileged communications but also against the revelation of confidential information that is not privileged."]) The broader duty contrasts with the client-attorney privilege, which must go to the consultation's substance. (X Corp. v. Doe (E.D. Va. 1992) 805 F.Supp. 1298, 1305.)

On privilege-level matter, by policy, I incorporate into my fiduciary duty guarantees stronger than any attorney can offer and broaden their scope to include my authorship of any work product. I treat express personal guarantees as binding as core privilege-level substantial confidences. Privilege-level matter is subject to an absolute privilege that I refuse to breach, even if compelled by order or prosecution or justified by litigation. No attorney can offer this guarantee without accepting disbarment for bad-faith disobedience to court orders. (Bus. & Prof. Code, § 6103.)

Applying the distinction between levels of confidentiality to my Gottschalk disclosures, I respected the attorney-client privilege absolutely but released matter prima facie confidential under the broader ethical standard: my knowledge of Gottschalk's skulduggery insofar as I was its target. Contrasted with the privilege level, my guarantees on broad confidentiality are only conditional. They won't necessarily survive court order or incontrovertible fraud.