Legal and Ethical Issues in Mentoring
The Bencher—January/February 2018
By W. Thompson Comerford, Jr., Esquire
Perhaps no other legal organization is more dedicated to the responsibility of mentoring young lawyers than the American Inns of Court. Members of the American Inns of Court, operating through Inns across the country, must provide leadership in mentoring. Arguably, this is the most important function of the organization, both nationally and locally. Various states, through their state bars and bar associations, have attempted to involve their members in mentoring—with varying degrees of success. The American Bar Association (ABA) has also been heavily involved in efforts to engage its members in mentoring relationships. My home state of North Carolina falls into the category of states that have experienced mixed results in its mentoring efforts. On the other hand, some states, notably Utah and Ohio, have implemented very effective programs.
The North Carolina Bar Association has two approaches to mentoring: situational and traditional. In situational mentoring, young lawyers sign up as mentees and are given a list of mentors in their practice area. If mentees encounter issues that require input from more experienced lawyers, they can call someone on the list of mentors. The mentorship ends after the phone call—which is usually how the inquiry is handled—or after a meeting.
The traditional mentor-mentee relationship is much more comprehensive and ambitious. The North Carolina Bar Association has an extended program divided into four quarters:
Quarter 1: Focuses on the mentor introducing the mentee to the local legal community (bar meetings, etc.).
Quarter 2: Is directed to personal and professional development, law firm management, law practice, client communications, advocacy, and negotiation.
Quarter 3: Is concerned primarily with basic litigation skills and advocacy.
Quarter 4: Is devoted to interpersonal relationships with clients, such as client interviewing, client meetings, and professionalism.
Both approaches to mentorship have their place. Each could be effectively implemented by local Inns of Court, whose members are typically leaders in the legal community who can provide excellent role-modeling to young lawyers finding their way in the profession.
In North Carolina, mentors must be lawyers in practice for five or more years. Mentees have to have practiced for fewer than three years. Both mentor and mentee must be in good standing with the state bar. Judges are prohibited from serving as mentors as this would constitute unauthorized practice of law and would include providing legal advice to an attorney, both of which are prohibited.
Protecting Confidential and Privileged Information
There are several potential legal and ethical issues that arise from mentoring relationships. Perhaps the foremost potential problem is confidentiality. North Carolina Rule of Professional Conduct 1.6 governs confidentiality. North Carolina has two ethics opinions interpreting issues with mentoring programs. The first, mentioned above, prevents judges from serving as mentors. The second opinion, affecting nearly all mentoring relationships, deals with confidentiality.
In 2014, the North Carolina State Bar received an inquiry that posed three questions. The first question was “May a lawyer who is mentoring a law student allow the student to observe confidential client consultations?” The opinion makes clear that it also applies to recently licensed lawyers as well as students. The bar responded that the law student or young lawyer may observe the consultation, provided the client first gives informed consent. The consent of the client should be in writing.
The second question asked whether the young lawyer/mentee may allow the lawyer/mentor to observe confidential client communications between the lawyer/mentee and the client. Again, with the informed consent of the client, the answer is yes. In both instances, the state bar said the observing lawyer (whether mentee or mentor) should first sign a written agreement to maintain the confidentiality of the other lawyer’s client.
The third question to the state bar asked what steps should be taken to protect confidential client information during a mentoring relationship. The bar answered that hypothetical inquiries are the best means to protect confidentiality and, if used carefully, do not require client consent.
It is important to recognize in all of these mentoring interactions, both lawyers—the mentee and mentor—must be mindful of and avoid potential conflicts of interest. The ABA has weighed in on this ethical issue, stating that Rule 1.6 is not violated in hypothetical inquiries (i.e., not disclosing the client), but if hypotheticals are not used, the lawyers must first obtain the client’s informed consent to protect the client. Further, the ABA recommends that the consulted lawyer should also agree—in writing—to hold privileged information in confidence.
These ethical rules and opinions do not address the legal analysis of whether attorney-client privilege is waived by the attendance of non-retained counsel at a client meeting. This is a question of law, not ethics, and a potentially thorny problem. The North Carolina State Bar issues ethical opinions, not legal opinions. The attorney-client privilege is a matter of common law and the rules of evidence.
In general, a lawyer has the ethical duty to protect client confidentiality. This duty applies not only to matters communicated directly by the client, but also to all information acquired during the representation, whatever the source. In contrast, client information is deemed privileged only if the relationship of attorney and client existed at the time the communication was made, the communication was made in confidence, the communication relates to a matter about which the attorney is being professionally consulted, the communication was made in the course of giving or seeking legal advice for a proper purpose, and the client has not waived the privilege. State v. McIntosh, 336 N.C. 517, 444 S.E.2d 438 (1994).
In Berens v. Berens, 785 S.E.2d 733 (N.C. Ct. App. 2016), the North Carolina Court of Appeals dealt with the issue of attorney-client privilege in a situation very similar, but not identical, to legal mentoring. The wife’s friend, a non-practicing attorney, attended meetings of plaintiff and her lawyer. The defendant claimed that attorney-client privilege was waived. The North Carolina Court disagreed, holding that the wife’s friend was an agent whose presence did not cause a waiver of the attorney-client privilege. The court acknowledged that waiver of the privilege happens when a third party is present because those communications are not confidential. However, the privilege still applies if the third party is an agent of either party. An important factor in the court’s holding was the existence of a written confidentiality agreement. Hence, if the mentor or mentee are deemed agents, the attorney-client privilege is not waived.
The bottom line is that individual lawyers participating in mentoring relationships must be familiar with the state’s rules governing attorney-client privilege and determine in their professional judgment whether the presence of a mentee in a confidential client consultation will jeopardize the attorney-client privilege. The lawyer also has a duty to discuss potential risks with the client and obtain the client’s informed consent in writing. When these steps are followed, it is highly unlikely that the privilege will be waived or that there will be an ethical violation.
Conflicts of Interest
Loyalty is an essential element in every lawyer’s relationship to a client. In the context of mentorship, lawyers must be mindful of the duty to avoid conflicts. The mentor must take steps to ensure that offering advice to a mentee will not adversely affect the client. This duty may also affect whether the mentor or mentee can take on future clients as a result of information obtained during a mentorship. This issue must be considered on a case-by-case basis.
The American Bar Association has proposed a seven-step plan:
- The consultation should be anonymous or hypothetical without reference to a real client or a real situation.
- If actual client information must be revealed to make the consultation effective, it should be limited to that which is essential to allow the consulted lawyer to answer the question. Disclosures that might constitute a waiver of attorney-client privilege, or which otherwise might prejudice the interests of the client must not be revealed without consent. The consulting lawyer should advise the client about the potential risks and consequences, including waiver of the attorney-client privilege, that might result from the consultation.
- The consulting lawyer should not consult with someone he knows has represented the opposing party in the past without first ascertaining that the matters are not substantially related and that the opposing party is represented by someone else in this matter. Similarly, a lawyer should exercise caution when consulting a lawyer who typically represents clients on the other side of the issue.
- The consulted lawyer should ask at the outset if the consulting lawyer knows whether the consulted lawyer or his firm represents or has ever represented any person who might be involved in the matter. In some circumstances, the consulted lawyer should ask the identify of the party adverse to the consulting lawyer’s client.
- At the outset, the consulted lawyer should inquire whether any information should be considered confidential and, if so, should obtain sufficient information regarding the consulting lawyer’s client and the matter to determine whether he has a conflict of interest.
- The consulted lawyer might ask for a waiver by the consulting lawyer’s client of any duty of confidentiality or conflict of interested relating to the consultation, allowing for the full use of information gained in the consultation for the benefit of the consulted lawyer’s client.
- The consulted lawyer might seek advance agreement with the consulting lawyer that, in case of a conflict of interest involving the matter in consultation or a related matter, the consulted lawyer’s firm will not be disqualified if the consulted lawyer “screens” himself from any participation in the adverse matter.
Formal and informal mentoring is crucial not only to the education of law students, but to the professional development of recently licensed young lawyers. The American Inns of Court and the local Inns should encourage their members to become involved in and serve as leaders in mentoring programs. At the same time, lawyers must be mindful that their primary ethical duties and professional responsibility is to their clients. The representation of a client typically involves many activities that do not affect attorney-client privilege: court proceedings, depositions, and witness interviews. There are many activities for a mentee to observe and learn from a mentor without jeopardizing attorney-client privilege.
W. Thompson Comerford, Jr., Esquire, is a partner in the firm Comerford & Britt LLP in Winston-Salem, North Carolina. He is a member of the American Inns of Court Board of Trustees and the immediate past president of the Chief Justice Joseph Branch AIC.
© 2018 W. Thompson Comerford, Jr., Esquire. This article was originally published in the January/February 2018 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.