June 15, 2016

You Can’t Make Me Tell—Or Can You? Can Observing Mentee- and Mentor-Lawyers Be Compelled to Testify About Confidential Client Information?

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Synopsis

A quiet but growing concern among legal mentoring programs is that the presence of an outside attorney observing an attorney-client exchange, whether observing in the role of a mentor or a mentee, could result in an inadvertent waiver by the client of the attorney-client privilege, thus allowing the observing attorney to be compelled to testify about confidential client information learned or observed during the mentoring episode. State bar mentoring and other programs have experimented with a variety of ways to protect from discovery the confidential information obtained by an observing lawyer, including such means as creating an of-counsel relationship between the observing attorney and the client’s law firm, or making the observing attorney co-counsel on the case. The North Carolina Court of Appeals recently issued an opinion that accepted a third-party lawyer observer as an agent of the client, thus preventing involuntary disclosure by that third party lawyer of confidential client information. But these approaches have limitations and potential pitfalls. Other ideas include modifying state rules of professional conduct to extend the attorney-client privilege to mentors and mentees along with certain law firm employees, seeking state Supreme Court opinions declaring mentors and mentees to be exempt from compelled testimony, or seeking state law changes through state legislatures to redefine evidentiary or work product rules. But each of these approaches presents political and procedural challenges that may be insurmountable—in time and expertise—for a mentoring program with limited staff. A solution must be found, because without a way to preserve client confidences when mentors or mentees observe lawyer-client interactions, mentoring programs, and therefore young lawyer development, may be impeded. In hopes of inspiring a solution, this article reviews some of the approaches tried or proposed by state mentoring programs, and urges state Supreme Courts to fashion rules that would protect the attorney-client privilege while allowing for mentoring observations.

Problems that Arise When an Observing Mentor or Mentee Reviews the File or Joins the Conversation

In the course of mentoring relationships between lawyers, where the intent is to help new lawyers handle their cases professionally and well, mentors and mentees may want to share confidential client information and observe each other’s client conferences. A lawyer mentee may want to observe the mentor in action and sit in on the mentor’s consultations with a client. In contrast, a mentor may best be able to assist a mentee by sitting in and observing the mentee in interactions with the mentee’s client, or by reviewing client documents.

Consultation with another attorney, during which confidential client information is shared, is allowed under the Model Rules of Professional Conduct, but only for limited purposes (which do not include mentoring).1 If the sharing of confidential information does not fit one of the exceptions, three potential hazards arise:

  • The observing attorney may be exposed to confidential client information.
  • Conflicts of interest may arise between mentors and mentees based on their respective clients, implicating MRPC 1.7.
  • Clients may inadvertently or knowingly waive the attorney client privilege by expressly permitting the observing attorney to observe.

An informal survey done by the author in 2015 revealed that a number of state mentoring programs have addressed the first two issues directly through the professional obligations of the client’s attorney, as follows:

  • To protect confidential client information from being voluntarily disclosed by the observing attorney, the client’s attorney can insist that mentor and mentee speak in hypotheticals, or the client’s attorney can seek the client’s informed consent to the disclosure of confidential information, and the observing attorney can be asked to sign a confidentiality agreement.
  • To avoid conflicts of interest, both attorneys can undertake conflict checks and attest that no conflict exists before the observing attorney obtains confidential client information.

But a more significant problem lingers, which may escape the immediate notice of the attorneys. Clients must be informed, of course, that by allowing the observing attorney into confidential areas, clients are waiving the attorney-client privilege (and fully-informed clients can consent to that), but no perfect solution has yet been found to avoid the possibility of the observing attorney being compelled by opposing counsel to testify regarding confidential client information that was obtained during the mentoring relationship.

Rules Governing the Attorney-Client Privilege and Work Product Doctrine

Three rules work in conjunction to provide protections from discovery of confidential client information.

The attorney-client privilege is based in federal and state evidentiary and procedural rules that define the information that will be protected from discovery. In federal cases, the applicable rule is Federal Rule of Evidence 502, Attorney Client Privilege and Work Product: Limitations on Waiver.2 This rule sets out the protections clients and attorneys can expect regarding the confidentiality of their discussions, and of work done in the course of that confidential relationship in anticipation of trial.

The related rule of civil procedure—Federal Rule of Civil Procedure 26(b)(3)(A), Duty to Disclose, Discovery Scope and Limits, Trial Preparation Materials, Documents and Tangible Things3—establishes the general prohibition against discovery of materials prepared in anticipation of litigation. This rule makes clear that a party’s consultants and agents may be protected from disclosing confidential information that the agent or consultant prepared in anticipation of or for trial. The questions will be whether the observing attorney fits the state definition of agent or consultant, and whether what the observing attorney observed will be considered information created in anticipation of trial.

As discussed above, the Model Rules of Professional Conduct, and MRPC 1.6 in particular, provide the third area of guidance, establishing the circumstances under which attorneys may share confidential client information.

The Problem for Legal Mentoring Programs

Seasoned lawyers who mentor new lawyers often feel that the best way to do so is to bring the mentee into actual discussions with clients to allow the mentee to observe first-hand how the mentor-lawyer interviews the client, explains the case and law to the client, addresses questions and concerns that the client may raise, and establishes trust and rapport with the client. Similarly, but in contrast, new lawyer mentees may want the mentor-attorney to observe the mentee in consultation with the mentee’s client, and thereafter offer guidance and suggestions to the mentee attorney. In either case, whether mentor or mentee, the observing attorney is being brought into attorney-client communications, which could potentially result in the client waiving the privilege, which in turn could result in the third-party observing lawyer being compelled to testify about what he or she observed or heard during those meetings.

The issue of attorney-client privilege waiver, and the resulting risk of compelled disclosure, isn’t always in the forefront of the minds of attorneys in mentoring relationships. Many attorneys may not have ever considered that zealous opposing counsel who learn of a mentoring relationship could put the observing attorney on the stand to try to compel testimony. If mentors do consider that risk, the reaction often is that there is too much risk to the client to allow outside attorneys to observe or share confidential information. That conclusion, in turn, may restrict the mentoring relationship to mere discussion of hypotheticals.

Thus, the unsolved problem for lawyer mentors and mentees is that the risk of compelled disclosure of confidential client information may chill the desire to provide mentoring in the preferred way, which is to offer guidance using the mentor’s or mentee’s actual cases. The concept was well stated by the Iowa State Bar Association:

The inability to discuss real life situations strikes at the very heart of the mentor-mentee relationship. While it is possible to phrase discussions in the hypothetical form, the practice often results in over-scrubbing the salient details to the extent that the learning point is lost. Consequently if a mentorship is to be meaningful it must be something more than a casual or social relationship and must be accomplished within the parameters of an ethical construct that will allow full discussion of real life problems.4

If the response is that mentoring programs ask mentors and mentees to refrain from client and case observations, the goals of those mentoring programs, and of providing good mentoring, may be undermined.

Approaches Under the Rules

Speak in Hypotheticals

The simplest way to avoid the waiver issue is to avoid sharing confidential client information with the observing attorney. In other words, speak in hypotheticals. Indeed, many mentoring programs require exactly that, and the ABA promotes that as a superior option. ABA Formal Opinion 98-411: Ethical Issues in Lawyer-to-Lawyer Consultation5 states that, if client information is not disclosed, Rule 1.6 is not implicated, and therefore, lawyers should first attempt to speak in hypotheticals.6

Although ABA Opinion 98-411 was written to apply to lawyer-to-lawyer consultations that are not necessarily based in a mentoring relationship, it nevertheless thoroughly identifies the same communications that arise in mentoring relationships. It states:

The decision to seek another lawyer’s advice may be precipitated by an atypical fact pattern, a knotty problem, a novel issue, or a matter that requires specialized knowledge. A lawyer who practices alone, or who has no colleague in or associated with his firm with the necessary competence will, and indeed often must, seek assistance from a lawyer outside the firm. Even the most experienced lawyers sometimes will find it useful to consult others who practice in the same area to get the benefit of their expertise on a difficult or unusual problem.7

Illinois, Colorado, and Ohio mentoring programs follow this approach. The Illinois State Bar Association issued an advisory opinion on confidentiality in mentoring programs stating that disclosures should be limited “to the information necessary for fruitful consultation” without disclosing the client or client confidences.8 Likewise, the current Mentoring Agreement utilized by the Supreme Court of Ohio Commission on Professionalism generally prohibits lawyers in mentoring relationships from identifying clients or revealing client confidences (except in pro bono cases).9 And in Colorado, the Colorado Attorney Mentoring Program, established by Rule 255 C.R.C.P., prohibits identification of clients and discussion of confidential client information.10 Mentors and mentees must speak in hypotheticals, and no legal advice will be offered or relied upon.

The hypothetical approach may work well in large metropolitan areas, or in rural areas with great distances between mentor and mentee, but in smaller legal communities—even those spread far and wide geographically but with few attorneys—hypotheticals may not work because the observing attorney may become aware of who the client is, based simply on knowledge of local clients and pending matters: with few lawyers and few cases, the case and the parties may become obvious even when they are not discussed by name.11

Thus, one approach is to adhere to the confidentiality or hypothetical rule, acknowledging that this may limit what can be discussed in a mentoring relationship in smaller communities where there is a chance the client or case could be identified. Indeed, some state programs require that mentor and mentee speak in hypotheticals.12 These state programs may add a second layer of protection by anticipating that, if confidential information is hypothetically shared, but the client may become identifiable, then client consent must be obtained. Further steps to protect confidential client information can involve requiring the mentee and mentor to keep the information confidential and not identify the client.13

Obtain Implied and Actual Consent

ABA Opinion 411-98 also instructs that attorneys must obtain the informed consent of the client to the sharing of confidential client information, if that may possibly occur:

Rule 1.6(a) permits disclosure of client information if the client consents “after consultation.” When the consulting lawyer determines that the consultation requires disclosure of client information protected by the attorney-client privilege or that foreseeably might harm the client if disclosed, the lawyer must assure that the client is made aware of the potential consequences of the disclosure and that the client grants permission to consult the other lawyer. The consequences may be significant. A disclosure of privileged communications by the consulting lawyer could be held to waive the attorney-client privilege.14

Therefore, after consultation with the client, including informing the client of the risks involved in waiving the attorney-client privilege, the client may consent to disclosure of confidential information to an observing attorney. Such action may put the lawyer in compliance with MRPC 1.6, but may also expose the client to the risk of subsequent involuntary disclosure of that information.

In the informal survey of state mentoring programs, the author discovered that some states require actual written consent from the client after informing the client of risks, including waiver of the attorney-client privilege.15 Still others extend the “implied informed [client] consent” provision of MRPC 1.6 to discussions between mentees and mentors to allow discussion of confidential information.16

The obvious problem with the approaches involving client consent is that they warn, but do not protect, the client from waiving the attorney-client privilege because a third party who is not co-counsel to the client or of-counsel to the firm has been allowed to share in the information, and they do not prevent a mentor or mentee from thereafter being compelled to testify about the confidential information.

Thus, states may revert back to the hypothetical approach to prevent the waiver of the attorney-client privilege, even while acknowledging the severe limitation of that approach.

Can the Observing Attorney Be Designated an Agent?

Under FRCP 26(b)(3)(A), certain parties cannot be forced to disclose confidential client information when those parties obtained that information in the preparation of the case for trial. “Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent).”17

The North Carolina Court of Appeals recently issued an opinion finding an observing attorney to be an agent of the client and therefore not subject to compelled testimony about the confidential information she learned while observing attorney-client meetings. However, this retired attorney was not in a mentoring relationship, but rather was present as a supportive friend to the client. Further, the attorney had drafted and signed a confidentiality agreement in which she described herself as an agent of the client.

The North Carolina opinion in Berens v. Berens,18 issued April 19, 2016, established that the presence of the attorney friend of a wife in a divorce action, who signed a confidentiality agreement and attended meetings with the wife and her attorney, did not cause wife to waive the attorney-client privilege that existed between her and her attorney. Attempts by husband to subpoena documents and testimony from wife’s agent/friend regarding wife’s exchanges with her attorney, were unsuccessful, due to the Court of Appeals overturning the trial court’s determination that the privilege had been waived.

This North Carolina opinion suggests that the attorney-client privilege will remain intact if third parties sign a confidentiality agreement that specifically identifies the observing attorney as an agent of the client. And although the agency relationship was accepted as established by the Court, based on the use of the word in the confidentiality agreement and the substance of that agreement, the observing attorney should have to meet the “agent” definition adopted by that state. What is not yet known in North Carolina is whether an observing mentor or mentee could meet the definition of “agent” for purposes of maintaining the attorney-client privilege when observing attorney-client meetings.

Other state mentoring programs attempting to promote observations of real client matters use techniques that fall into two categories: creating a legal relationship between mentor and mentee, and taking legislative action to change the rules.

Legal Relationship Approaches

The observing attorney may be protected from compelled testimony if a legal relationship exists between mentor and mentee. Such relationships include making mentees of-counsel to the mentor’s firm or co-counsel on the case, or making mentor and mentee lawyer and client to each other. While such relationships would protect the observing attorney from being compelled to testify, these may not be practical approaches. Each legal relationship is problematic in its own way. For example, what law firm would be willing to make all mentees of-counsel to their firm? And how many lawyers would really want to take on a mentee or mentor as co-counsel on a case and risk losing the client or income to the other lawyer? What if the mentor or mentee is mistaken about the law and one of them gets sued? Is the other attorney liable too? And might an attorney-client relationship between mentor and mentee be viewed skeptically by a court as a sham relationship to avoid compelled testimony?

In the author’s informal survey of state mentoring programs, she was unable to find examples of these legal relationships that actually worked. Some states indicated they had these ideas in place, but didn’t know of any cases where it had actually been tried or utilized.

Create Of-Counsel and Co-Counsel Relationships

Ohio initiated a pilot program through which mentees and mentors could be co-counsel. The mentoring agreement required confidentiality and allowed mentors to become co-counsel if clients consented. Fifty pairs of attorneys experimented with that approach. Of those, only eighteen responded to a survey. They generally indicated that the approach worked well. Although Ohio did not receive any negative feedback about the pilot, in an effort to eliminate many of the concerns about co-counseling, and in an effort to promote access to justice, the Ohio Supreme Court approved, and the state has now implemented, a co-counseling activity in its mentoring program for mentors and new lawyers who would like to co-counsel on a pro bono case.19 So while the co-counsel approach worked in limited cases, it was not found to be a panacea, because of the inherent problems mentioned above.

The Iowa State Bar Association also examined the co-counsel approach and identified problems with it beyond possibly losing a client to the observing attorney:

Likewise, while it is possible to use a co-counsel relationship as a basis for mentorship training, it will, by its very nature, be limited to that one specific matter and require the mentee to enter into a direct attorney-client engagement with the client. It is possible to build a mentorship relationship using the contracted-retained lawyer relationship described in IA Ethics Opinion 13-03, however doing so creates a logistical burden for the mentor who will be required to anticipate which client’s matter will most likely be used during the mentorship and obtain the client’s consent.20

As a result, the Iowa Bar promoted an approach of making the mentee of-counsel to the mentor’s law firm. In its letter dated August 27, 2013, the State Bar’s Committee on Ethics and Practice Guidelines stated:

The last alternative, and we believe the best, is the of-counsel relationship. It suffers from none of the restrictions discussed above. As described in IA Ethics Opinion 13-01 the of-counsel lawyer is considered part of the law firm for all ethics purposes. Consequently and [sic] an exchange of client information is permissible under Iowa R. Prof’l Conduct 32: 1.6 Comment [5]. Client consent is not required because the of-counsel lawyer is considered part of the law firm. With the consent of the law firm, the mentee can form multiple of-counsel relationships with mentors from differing fields of practice provided, however, that they all understand the potential for direct and imputed conflicts of interest as described in IA Ethics Opinion 13-01.21

The of-counsel approach may raise liability issues for the law firm, and the firm may not want to be associated with many new lawyers who happen to be mentees of the firm’s lawyer-mentors. The co-counsel approach may be impossible in smaller communities, and might put too heavy a burden of responsibility on the outside lawyer to too many clients. In speaking with the mentoring program administrators, and except for the Ohio pilot program, the author was unable to learn of any cases where such relationships had actually been created for the purpose of mentoring and protecting the attorney-client privilege. Interestingly, Ohio’s standard and current mentoring program strictly prohibits co-counsel relationships (except when working on a pro bono matter), as well as the creation of lawyer-client relationships between mentor and mentee. This is discussed in more detail below.22

Create a Lawyer-Client Relationship

An approach utilized by New Mexico, Utah, and Washington, D.C. involves creating a lawyer-client relationship between mentor and mentee. This approach would create a confidential relationship, protect the attorney-client privilege, and protect the mentor and mentee from compelled disclosure.

The Washington, D.C. Bar Rules23 indicate that a lawyer officially connected with the D.C. Bar Practice Management Service Committee is deemed to have a lawyer-client relationship with any lawyer-counselee being counseled under programs conducted by or on behalf of the Committee. However, this rule applies specifically to practice management and lawyer monitoring situations and doesn’t explicitly apply to mentors and mentees in a mentoring relationship. Its purpose is to encourage utilization of the D.C. Bar Practice Management Service Committee by lawyers to address management problems in their practices and to protect the members, staff assistants, mentors, monitors, and other consultants of that Committee.

New Mexico Rule 24-110 was specifically passed to support the Bridge the Gap: Transitioning into the Profession program administered by the State Bar of New Mexico.24 This rule encourages mentors to speak to mentees in hypotheticals for short-term discussions.25 Although the mentoring lawyer is presumed not to have a lawyer-client relationship with the new lawyer’s client, the mentoring lawyer is presumed to be a representative of the new lawyer employed to assist the new lawyer in the rendition of professional legal services. Longer term mentoring regarding a specific client may result in a co-counsel relationship between the outside lawyer and the client.

Outside of New Mexico and Washington, D.C., the author learned that the lawyer-client approach between a mentor and mentee had also been used in Utah, but only once in their five-year-long program, and it involved a case where the mentor was helping the mentee on a long-term basis. No information was provided at the time of the interview about how it worked out. Utah’s rules allow lawyers who are mentoring on an on-going basis regarding a specific client, within the context of the mentoring relationship established through Utah’s New Lawyer Training Program, to enter into a lawyer-client relationship. 26

Judicial and Legislative Approaches

Another approach, which would likely be more viable in the context of a formal, state-certified and required mentoring program, is to ask the state supreme court to issue a rule or opinion declaring mentees and mentors not subject to compelled testimony regarding information obtained in the course of a mentoring relationship. Utah has amended its Supreme Court Rules to declare that information obtained in the course of a mentoring relationship is exempt from the Utah Rules of Professional Conduct regarding confidentiality because the disclosure is impliedly authorized and necessary to carry out the purposes of Utah’s New Lawyer Training Program.27

Minnesota did something similar, but only for law student mentees in mentoring relationships with bar members.28 Minnesota pursued this route when it adopted its Student Practice Rule 3.0 that extended the attorney-client privilege to law students engaged in a mentoring program. The rule states:

Rule 3. Student Observation of Professional Activities

Rule 3.01. Observation of Professional Activities: An eligible law student may, under the supervision of a member of the bar, observe any and all professional activities of a member of the bar, including client communications. Communications between the client and the student shall be privileged under the same rules that govern the attorney-client privilege and work product doctrine, and the presence of the student during communications between the lawyer and client shall not, standing alone, waive these evidentiary privileges. The law student’s observation must be part of an academic program or a course for academic credit.29

Accomplishing a change using this method would require all interested parties to come together and agree on an approach, and then ask the state court to adopt it. In Minnesota, even the student-based rule required almost two years of negotiations before it was passed.30 And even with support for such a rule, further problems arise. North Carolina administrators indicated their Court was unwilling to consider issuing such a rule, in part from a fear that witnesses may avoid testifying about what they know by saying they obtained the information in the course of a mentoring relationship.

Some state mentoring program directors and others examining this issue have contemplated amending the comments of MRPC 5.3 to extend the attorney client privilege to mentees by treating mentees as attorney staff for the purposes of confidentiality. However, this approach would require action by the state bar and ultimately the state Supreme Court, and since it would be comment-based, a judge could still order a mentee to testify. Thus, a better approach would be to get the Legislature to amend statutes regarding extending the attorney client privilege to mentees. However, this political approach is inherently unpredictable.

Conclusion

State mentoring programs are facing an important challenge in their attempts to provide and encourage excellent mentoring while protecting the attorney-client privilege. There is no question that mentoring is critical to bringing new lawyers into the profession. The rules require as much. While law schools have instituted externships requiring the actual practice of law, and have improved skill-based learning by leaps and bounds, skill-based learning is academic and externships are limited in duration, leaving new lawyers with only some notion of how it might actually work in practice. And every practicing lawyer knows that the actual practice of law requires guidance beyond what law schools can provide. Mentoring has provided an increasingly popular and effective way to offer that guidance. But mentoring between lawyers who are not part of the same firm can cause difficulties. The most problematic being the waiver of the attorney-client privilege, which can allow opposing counsel to compel testimony from observing lawyers about client confidences.

While none of the solutions offered above is a panacea, Utah’s approach—of amending the state Supreme Court rules to declare that information obtained in the course of a mentoring relationship is exempt from the state’s rules regarding confidentiality—may provide the clearest and most reliable solution. Because the Utah Supreme Court adopted this amendment for the purpose of protecting and promoting the state’s mentoring program, this approach may provide a solution only for those states that require mentoring for new lawyers. Thus, states with required mentoring programs could urge this approach with their Supreme Courts. Doing so may actually encourage those states that do not yet require new lawyer mentoring to do exactly that, knowing that this issue has been successfully addressed.

Endnotes

1. Model Rules of Prof’l Conduct R. 1.6(b) & (c) (2016).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm;

(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;

(4) to secure legal advice about the lawyer’s compliance with these Rules;

(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;

(6) to comply with other law or a court order; or

(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.

(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

(Emphasis added.)

2. Fed. R. Evid. 502 (g).

“In this rule:

1. ‘attorney-client privilege’ means the protection that applicable law provides for confidential attorney-client communications; and

2. ‘work-product protection’ means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial.”

3. Fed. R. Civ. P. 26(b)(3).

Trial Preparation: Materials.

(A) Documents and Tangible Things. Ordinarily, a party may not discover documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent). But, subject to Rule 26(b)(4), those materials may be discovered if:

(i) they are otherwise discoverable under Rule 26(b)(1); and

(ii) the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.

4. Letter from The Iowa State Bar Association Committee on Ethics and Practice Guidelines to Mr. Dwight Dinkla, Executive Director, Iowa State Bar Association 3 (Aug. 27, 2013) [hereinafter Letter from The Iowa State Bar], available at http://205.209.45.153/iabar/ethics.nsf/e61beed77a215f6686256497004ce492/dcebee0f742b1d1b86257bdd006408a0/$FILE/74192118.pdf/IA%20Ethics%20Opinion%2013-04%20Mentor-Mentee%20Relationships.pdf.

5. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 98-411 (1998).

6. Id. at 3.

7. Id. at 2.

8. Ill. State Bar Ass’n Prof’l Conduct Advisory Op. 12-16, at 2 (2012).

9. Supreme Court of Ohio Commission on Professionalism, Lawyer To Lawyer Mentoring Program Mentoring Agreement For Outside Mentoring Relationships [hereinafter Ohio Mentoring Agreement For Outside Mentoring Relationships], http://www.supremecourt.ohio.gov/AttySvcs/mentoring/PDF/outside_mentorAgree.pdf (last visited Jan. 31, 2017).

10. C.R.C.P. 225 (Colorado Attorney Mentoring Program), available at http://coloradomentoring.org/about-camp/rule-255-crcp/ (last visited Jan. 31, 2017).

11. “The consulting lawyer should not assume, however, that the anonymous or hypothetical consultation eliminates all risk of disclosure of client information. If the hypothetical facts discussed allow the consulted lawyer subsequently to match those facts to a specific individual or entity, the information is not already generally known, and disclosure may prejudice or embarrass the client, the consulting lawyer’s discussion of the facts may have violated his duty of confidentiality under Rule 1.6.” ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 98-411, supra note 5, at 3-4.

12. See, e.g., The Supreme Court of Ohio & The Ohio Judicial System Lawyer to Lawyer Mentoring Program, https://www.supremecourt.ohio.gov/AttySvcs/mentoring/ (last visited Jan. 31, 2017).

13. This approach can be observed in the state mentoring programs in Ohio, Tennessee, North Carolina, and Colorado.

14. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 98-411, supra note 5, at 4.

15. These states include North Carolina and Oregon.

16. Tennessee and Utah both extend the “implied informed [client] consent” provision of MRPC 1.6 to discussions between mentees and mentors to allow discussion of confidential information.

17. Fed. R. Civ. P. 26(b)(3)(A).

18. Berens v. Berens, 785 S.E.2d 733 (N.C. Ct. App. 2016).

19. This information was obtained from an interview with Lori Keating, Secretary, Commission on Professionalism, Supreme Court of Ohio, Ohio Lawyer to Lawyer Mentoring Program. See also, Supreme Court of Ohio Commission on Professionalism, Lawyer to Lawyer Mentoring Program Worksheet OO Co-Counseling in a Pro Bono Case, http://www.supremecourt.ohio.gov/AttySvcs/mentoring/PDF/WorksheetOO.pdf (last visited Jan. 31, 2017).

20. Letter from The Iowa State Bar, supra note 4, at 4.

21. Id.

22. “No confidential relationship is formed between the mentor and the new lawyer as a result of participation in the Program. The new lawyer will not identify any client to the mentor or reveal to the mentor any client confidence, nor will the new lawyer seek professional or legal advice from the mentor about specific legal matters or clients. Instead all discussions about substantive legal matters between the new lawyer and mentor will be limited to hypothetical situations. The mentor is not assuming any liability or responsibility with respect to any legal matter of the new lawyer’s clients, nor will the mentor render professional services to or take any responsibility for any aspect of representation of the new lawyer’s clients. The mentor will not co-counsel any matter with the new lawyer, nor will the mentor make referrals to or accept referrals from the new lawyer during the term of their mentoring relationship through the Program.” Ohio Mentoring Agreement For Outside Mentoring Relationships, supra note 9.

23. D.C. Bar Rules of Prof’l Conduct R. 1.6 (i) & (j) & cmts. [32] & [33].

24. State Bar of New Mexico Bridge the Gap Mentorship Program, http://www.nmbar.org/nmstatebar/For_Members/Bridge_the_Gap_Mentorship_Program.aspx (last visited Jan. 31, 2017).

25. NMRA 24-110, available at https://www.nmbar.org/nmbardocs/formembers/mentorship/Rule24-110.pdf (last visited Jan. 31, 2017).

26. Utah Sup. Ct. R. 14-808(h).

27. In addition, conflict checks are not required. Utah Sup. Ct. R. 14-808((h)(4). However, conflict checks and the Utah Rules of Professional Conduct do apply when ongoing or regular counsel or guidance is offered related to a specific client.

28. Minn. Sup. Ct. Student Practice R. 3, available at https://www.revisor.leg.state.mn.us/court_rules/rule.php?type=pr&subtype=stud&id=3 (last visited Jan. 31, 2017).

29. Id.

30. As reported by Dave Bateson, then-Director of Mentor Externship for University of St. Thomas School of Law.