Knowing Confidentiality Violation Draws Suspension

The Washington State Supreme Court has ordered a nine-month  suspension for a “knowing” breach of an attorney’s duty of confidentiality to a former client

Attorney Geoffrey Colburn Cross revealed information relating to his representation of former client, Drew Vickers, in a criminal matter. He revealed that information to the attorney representing a party adverse to Vickers in a separate, related, civil matter. The Disciplinary Board of the Washington State Bar Association (Board) found that Cross’s conduct violated two Rules of Professional Conduct (RPC) barring such disclosures absent informed consent.

The main question for the court on this appeal is whether Cross’s purposeful disclosure of this information to the adverse party should be considered “negligent,” rather than “knowing,” because Cross did not realize that the RPCs barred such disclosure. The Office of Disciplinary Counsel’s hearing officer determined that the conduct was “negligent,” and the hearing officer therefore imposed a reprimand. The Board disagreed: the Board unanimously ruled that Cross’s disclosure was “knowing,” and it therefore unanimously imposed a nine month suspension.

We uphold the Board’s decision in full. We adhere to our prior decisions holding that a lawyer’s conscious choice to disclose client information that the RPCs protect from disclosure constitutes “knowing,” rather than “negligent,” conduct—even if the lawyer does not know that the RPCs protect that information.

Respondent had represented the former client on criminal charges relating to her operation of an ATV.

The client was then sued by her passenger, who was represented by the attorney who had referred the criminal matter to Respondent.

The client retained new counsel, who sought to bring in Yamaha as a third party defendant

Respondent spoke to the plaintiff’s first attorney

At the time that Cross knew this information, including the information about who represented whom, Carroll asked Cross to give Carroll some information about Cross’s former client, Vickers. Despite the fact that Cross knew that Carroll represented Vickers’s adversary (Valenzuela), Cross agreed. Cross then told Carroll that during Cross’s representation of Vickers, Cross had discussed with Vickers the possibility of filing a lawsuit against Yamaha and that Vickers had decided against it. DP at 5; Exs. at 177, 245. Carroll took this information and in turn disclosed it publicly in Carroll’s declaration in opposition to Vickers’s motion to amend his answer. Clerk’s Papers at 25; Exs. at 177.

Respondent then gave a declaration

Cross now acknowledges that providing the declaration was a mistake. Id. at 39. But he claims that nothing was disclosed that was not already in the public record. Id. Cross also claims that his understanding was complicated by the fact that the statute of limitations had expired on any claim that Vickers had had against Yamaha. DP at 7-8. Further, Cross now denies that he was helping Carroll and asserts that he did not believe he was hurting his former client in any way. VRP at 39. Notably, however, Cross admitted at other points during the disciplinary proceeding that the purpose of his declaration was to “help” Carroll. Exs. at 253

“Knowing”

Cross argues that he was not aware that the content of the declaration was a “client confidence” and therefore he did not have the requisite “knowledge” that he was violating an RPC. Br. of Appellant at 12. We assume that Cross’s factual assertion is correct—the hearing officer’s conclusion certainly seems to have been based on his factual finding that Cross did not understand that he had violated the Rules.

We nevertheless reject Cross’s argument for a variety of other legal reasons…

Cross knew that he was providing a declaration with “information relating to the representation” of his client to his client’s adversary—a serious act that would cause any reasonable lawyer to at least pause and look up the rules on former client disclosures. Cross revealed his and his former client’s assessment of the case. He revealed that assessment to help bolster Carroll’s (and hence Valenzuela’s) arguments in opposition to amendment of Vickers’s answer; thus, the information that Cross now characterizes as merely “clarifying” was something that the parties to the civil suit hoped—or feared—could change the outcome. VRP at 27 (Cross claimed that Carroll “needed to clarify what happened, and I clarified it at his request.”).

In sum, Cross knowingly provided a declaration to his former client’s adversary discussing the course of his relationship with that former client. Thus, we uphold the Board’s conclusion that Cross had “knowledge” of his actions.

The court thus upheld the proposed suspension. (Mike Frisch)