In General Dynamics Corp. v. Superior Court, 7 Cal.4th 1164, 876 P.2d 487 (1994), the California Supreme Court, permitting a corporate lawyer claiming wrongful discharge to disclose his employer-client's confidential information, said at pages 1189-91:

[T]hose values that underlie the professional relationship--the fiduciary qualities of mutual trust and confidence--can be protected from the threat of damage by limiting judicial access to claims grounded in explicit and unequivocal ethical norms embodied in the Rules of Professional Responsibility and statutes ... under circumstances in which the Legislature has manifested a judgment that the principle of professional confidentiality does not apply. (See, e.g., Evid. Code, § 956.5 ["There is no privilege ... if the lawyer reasonably believes that disclosure of any confidential communication ... is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm."])
....
Matters involving the commission of a crime or a fraud, or circumstances in which the attorney reasonably believes that disclosure is necessary to prevent the commission of a criminal act likely to result in death or substantial bodily harm, are statutory and well-recognized exceptions to the attorney-client privilege. (See, e.g., Marc Rich & Co. v. United States (2d Cir. 1984) 731 F.2d 1032; People v. Pic'l (1981) 114 Cal.App.3d 824 [171 Cal.Rptr. 106]; Glade v. Superior Court (1978) 76 Cal.App.3d 738 [143 Cal.Rptr. 119]; Evid. Code, §§ 956-958.) As to them, "[t]he privilege takes flight if the relation is abused." (Clark v. United States (1933) 289 U.S. 1, 15 [77 L.Ed. 993, 1000-1001, 53 S.Ct. 465] (opn. of Cardozo, J.).) Although their revelation in the course of a retaliatory discharge suit may do lasting damage to the expectations of the corporate client (or, more likely, a corporate executive) that disclosures to counsel would remain inviolate, a concern for protecting the fiduciary aspects of the relationship in the case of a client who confides in counsel for the purpose of planning a crime or practicing a fraud is misplaced; such disclosures do not violate the privilege.

CALIFORNIA EVIDENCE CODE 

956. There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.

956.5. There is no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

957. There is no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

958. There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.

[Return to www.EvergreenEthics.com.]