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Who's Your Client?

By Thomas E. Spahn

A federal judge recently concluded in a widely reported option backdating case that the California law firm Irell & Manella had “compromised ' important principles” involving the “fair administration of justice.” United States v. Nicholas, 606 F. Supp. 2d 1109, 1112 (C.D. Cal. 2009). After finding that the firm had improperly disclosed one client's confidences to benefit another firm client, the court said it could not “overlook Irell's ethical misconduct in this regard and must refer Irell to the State Bar for appropriate discipline.”

This case highlights the risks that all lawyers run when they do not properly identify their client. An attorney-client relationship triggers all the lawyer's ethical duties and defines who owns the attorney-client privilege itself. As with many other ethical pitfalls for attorneys, the risks are much higher in the murky world where clients face criminal jeopardy. The criminal process not only threatens a client's liberty but also adds a constitutional dimension to the protections afforded clients by state law and professional ethics.

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