What happens when a lawyer may have committed malpractice? May the offending lawyer confidentially consult internally within in his or her firm with— the “loss prevention” partner, the ethics committee, or the managing partner — and may those others then consult confidentially about the situation among themselves?
This is an issue that has flown under the radar for many years, but has begun to get considerable attention from courts and commentators in the past five years, most frequently, as it happens, in federal courts in Northern California. Here, the ethics rules on confidentiality are not much help. These issues generally arise in the context of privilege: when a law firm claims during discovery in the client’s later malpractice suit that its internal conversations were privileged as internal attorney-client communications.
