From: legalethics@lists.washlaw.edu (Doug Schafer)
Date: Wed, 05 Dec 2001 14:10:02 -0800
Subject: [Legalethics] change in CA confidentiality?I submit that California courts have long recognized various exceptions to the duty of confidentiality, but the organized bar of that state has refused to acknowlege that. Prof. Roger Cramton and Lori Knowles observed in their article, "Professional Secrecy and its Exceptions: Spaulding v. Zimmerman Revisited," 83 Minn. L. Rev. 63 (1998), at page 125, n.196:
"The most extreme case of silence and denial concerning issues of professional confidentiality is in California, where leaders of the bar often state that the professional duty of confidentiality is an absolute one not qualified by any exceptions. It is true that California’s court rules governing lawyers’ professional conduct do not deal explicitly with confidentiality, but the talk of an absolute duty ignores at least a half-dozen exceptions recognized by California case law. In addition, a recent decision of the California Supreme Court holds that all of the exceptions to California’s statutory attorney-client privilege are also exceptions to the lawyer’s duty of confidentiality. See General Dynamics Corp. v. Superior Court, 876 P.2d 487, 503 (Cal. 1994) (in-house lawyer’s confidentiality obligations are determined by "some statute or ethical rule, such as the statutory exceptions to the attorney-client privilege ....")."The new People v. Dang case that Zitrin mentioned today is simply another example of a court applying the holding of General Dynamics (1994) "that all of the exceptions to California’s statutory attorney-client privilege are also exceptions to the lawyer’s duty of confidentiality."The question is how many such cases will it take before leaders of the California bar will begin to accept it. The Fox Searchlight Pictures (2001) opinion cited in Dang stated about the notorious Bus. and Prof. Code section 6068(e)(duty of lawyers to maintain client confidences and secrets):
"Although the statute on its face brooks no exceptions, it must be read in conjunction with other statutes and ethical rules which specifically permit the attorney to depart from the usual rules of client confidentiality. For example, Evidence Code section 958 Evid. states the attorney-client privilege does not apply "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." This statute may come into play in the present case because, as noted above, a corporate law department cannot discriminate against its employees on the basis of sex ..."The new Dang case recognizes the duty of confidentiality is subject to Evid. Code 956.5 (no privilege for client comments threatening death or substantial bodily harm). The 1994 General Dynamics court recognized that the duty of confidentiality is subject to Evid. Code 956 (no privilege for client using lawyer to further a crime or fraud).Thus, since 1994 in California the Crime-Fraud Exception has applied to the Duty of Confidentiality, permitting lawyers to disclose a client's unprivileged (due to the CFE) information to prevent or to rectify the consequences of the client's crime or fraud. The real problem is that the California lawyers (still apparently paranoid about Tarasoff-type liability for lawyers who enable their clients' murders, frauds, and other lawlessness) refuse to acknowledge their own state's case law!
Richard Zitrin says of Dang, "So maybe California has joined the rest of the world?" I submit that its courts have long been on the leading edge of restoring the central moral traditions of lawyering (e.g., rectifying client fraud, per 1908 Canon 41), but the real question is whether the California lawyers will "get it" or will choose to remain "in denial."
Doug Schafer, solo in Tacoma, Washington.
see http://www.dougschafer.com/articles/Cramton&Knowles.1998.pdf
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.
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.