Section 956.5 Evid. exempts certain communications from the scope of the attorney-client privilege. It provides: "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."

        Counsel for appellant moved to exclude the testimony of Mark Smith, his former defense attorney, on the grounds of attorney-client privilege. The trial court conducted a hearing under Evidence Code section 402 Evid. Mr. Smith testified that he believed he had a responsibility to inform the district attorney that appellant had made threats against witnesses. In the first instance, appellant told Mr. Smith, in essence, that he "should not worry or get into trial preparation at an extensive level since there were other options that were being explored. Primarily, that one or more witnesses were either bought off or harmed." Mr. Smith believed that appellant was threatening Ms. Nguyen and Mr. Huynh, but appellant did not name them. In a second conversation, appellant repeated his threats against witnesses and also threatened Mr. Smith.
        ....
        Appellant characterizes the threats as an attempt to "pay off one or more witnesses." With this characterization, he argues that Mr. Smith's testimony was not authorized under section 956.5 Evid. because "while morally wrong, it does not involve the client 'committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.'"

        Appellant's argument ignores the substance of Mr. Smith's testimony: that appellant threatened both witnesses and Mr. Smith with death. Such a threat clearly comes within section 956.5 Evid.

        The interpretation of section 956.5 Evid. is a matter of first impression. After the Supreme Court decided Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, commentators began to discuss whether the principles announced in that case apply to attorneys. (See Sands, The Attorney's Affirmative Duty to Warn Foreseeable Victims of a Client's Intended Violent Assault (1986) 21 Tort & Ins. L.J. 355.) Since 1969, the American Bar Association's rules for attorney conduct have contained a provision permitting disclosure of a client's communication to prevent a violent crime.[fn2] (See Note, Unveiling the Truth When It Matters Most: Implementing the Tarasoff Duty for California's Attorneys (1999) 73 So.Cal. L.Rev. 139, 142.)

        In June 1993, the California Supreme Court rejected the State Bar's Proposed Rule of Professional Conduct 3-100 for the second time. (See Kerrane, Will Tarasoff Liability Be Extended to Attorneys in Light of New California Evidence Code Section 956.5 Evid.? (1995) 35 Santa Clara L.Rev. 825, 829-230 [hereafter Kerrane].) That proposed rule would have provided in pertinent part: "(C) A member may reveal a confidence or secret: [¶] (3) To the extent the member reasonably believes necessary; [¶] (a) to prevent the commission of a criminal act that the member believes is likely to result in death or substantial bodily harm. Cal. Code of Professional Conduct Rule 3-100. . . ." (Ibid.)

        In May 1993, Senator Robert Presley amended his Senate Bill No. 645 on attorney discipline to add section 956.5 Evid.. Originally, section 956.5 Evid. would have required the attorney to believe that threatened death or substantial bodily harm be "imminent." The word "imminent" was deleted in a September 1993 amendment to the bill. The same amendment deleted a provision of section 956.5 Evid. which would have given attorneys immunity from liability if a lawyer decided not to take preventive action under section 956.5 Evid.. (See Kerrane, 35 Santa Clara L.Rev. at p. 832; Sen. Bill No. 645 (1993-1994 Reg. Sess.) as amended Sept. 2, 1993.) Section 956.5 Evid. went into effect on January 1, 1994.

        We conclude that the language of section 956.5 Evid. is plain and that it applies to the threats made by appellant. Under section 956.5 Evid. there is no attorney-client privilege for such statements. Mr. Smith's testimony about appellant's threats was properly admitted.

        We note a possible conflict between section 956.5 Evid. and Business and Professions Code section 6068 Bus. & Prof., subdivision (e), which requires an attorney to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Appellant did not raise this issue either in the trial court or in his brief on appeal. We sent a letter to counsel under Government Code section 68081 Gov't asking counsel to address this issue at oral argument. Since our issue is limited to the admissibility of the testimony by Mr. Smith, we need not resolve this conflict. Section 956.5 Evid. is an evidentiary rule, while Business and Professions Code section 6068 Bus. & Prof. is a codified rule of conduct for attorneys. The trial court properly applied the evidentiary rule and admitted the testimony. We note that the State Bar Court has held the duty of confidentiality under Business and Professions Code section 6068 Bus. & Prof., subdivision (e) is modified by the exceptions to the attorney-client privilege codified in the Evidence Code. (See Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 314; see also General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1191 [recognizing exception to attorney-client privilege where attorney reasonably believes disclosure necessary to prevent criminal act likely to result in death or substantial bodily harm].)

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[fn2] The American Bar Association Model Code of Professional Responsibility, Disciplinary Rule 4-101(c)(3) provided that an attorney may reveal "[t]he intention of his client to commit a crime and the information necessary to prevent the crime." The Model Rules of Professional Conduct were adopted by the American Bar Association in 1983. Rule 1.6(b)(1) permits disclosure where "the lawyer reasonably believes [it] necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm."

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