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Lawyer ethics rules —
particularly those regarding confidentiality — are supposed to protect
clients. But sometimes the bureaucrats
are so obsessed with giving the impression
that they are protecting the public that they actually lose sight of that goal. For example, when doing research for a new law
review article, I came across several articles discussing the California Bar’s “Formal
Opinion 1986-87.” This opinion is now
quite old, but it is so absurd that it is still being discussed and debated in legal publications as recently as 2013. In
short, the opinion deals with California ’s
version of the bizarre ethics rule that prohibits an attorney from revealing any information relating to the
representation of a client. And the word
“information” includes not only confidential client communications and other secrets, but all
information, including information that is widely and publicly available. (If you are a Wisconsin
lawyer and think this is ridiculous, you might be surprised to learn that we,
along with most states, have similarly absurd rules in the form of SCRs 1.6 and
1.9.)