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California Legal Ethics

Pictures of Lilly — Implied Exceptions to Confidentiality in California

Posted by David Carr | Mar 06, 2019 | 0 Comments

California statutory law of attorney duty enshrines an extremely strict standard regarding attorney confidentiality, Business and Professions code section 6068(e). it's romantic language requires an attorney to keep the confidence and secrets of the client “at every peril” to the attorney.  The only exception recognized in the statute is a safe harbor when an attorney reports confidential information creating a reasonable belief that a client intends to commit a criminal act reasonably likely to result in death of great bodily harm.

The evidence code also a different set of statutes Enacted by  the legislature that protects attorney-client confidentiality with the attorney-client privilege, Evidence Code section 952.  There are eight statutory exceptions to the lawyer-client privilege The exception that most closely matches exception section 6068(e)(2) is evidence code section 956.5, originally enacted in 1993. The evidence code states six other exceptions to the lawyer-client privilege, none having a corresponding sub-section in 6068(e).

In People v. Dang (2001) 93 Cal.App.4th 1293, the Second District Court of Appeal found that Dang's trial attorney could testify about the statement Dang made “that he was going to try to “pay off” one or more witnesses and that he would “whack” the witnesses if he was not successful in bribing them” was admissible under section 956.5. Dang, at 1295.  The Court noted the conflict between section 6068(e) and section 956.5. The Court also noted that the California Supreme Court rejected proposed Rule of Professional Conduct 3-100 in 1993, which would have provided for the death great bodily harm exception. Nonetheless, the evidence was clearly admissible under the Evidence Code exception, and the trial court did abuse its discretion by admitting the testimony of Dang's former lawyer.

As part of its analysis, the Court noted that the “that the State Bar Court has held the duty of confidentiality under Business and Professions Code section 6068, subdivision (e) is modified by the exceptions to the attorney-client privilege codified in the Evidence Code.” Dang, at 1298–99.  citing Fox Searchlight (which found an exception) which in turn cites In the Matter of Lilly (Review Dept. 1993), 2 Cal. State Bar Ct. Rptr. 473, 1993 WL 277528.

Unfortunately, Lilly doesn't really say that. The closest it comes is dicta that remarks in passing that exceptions to the lawyer-client privilege exist while trying to decide if a deceased former client comes within the scope of the former summary disbarment statute that provided for that draconian remedy if a client of a lawyer is a victim (Lilly, at 479).

However much the Court of Appeal relied on the slim reed that is Lilly, following Dang, in short order, (1) the legislature amended section 6068(e) to conform to Evidence Code section 956.5 and (2) the State Bar of California promulgated former Rule of  Professional Conduct 3-100 (current Rule 1.6) to the California Supreme Court, which approved it, presumably because it was accompanied by its legislative twin.

The Legislature could have amended section 6068(e) to accommodate the other seven exceptions to the privilege codified in the Evidence Code, but it chose not to.  Only death-great bodily harm made the cut.  So does the principle of implied exceptions to confidentiality hold water?

The exception of most interest to attorneys is probably Evidence Code section 958, which excepts communications relevant to a breach of duty by either lawyer or client, sometimes called the “attorney self-defense exception” (see Styles v. Mumbert (2008) 164 Cal. App. 4th 1163, 1168).  On the ethics side it is well articulated in ABA Model Rule 1.6(b)(5): “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:…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”…

The advent of online comments through websites such as Yelp and Avvo has pushed some urgency into the discussion, especially as online comment have more and more come to be part of lawyer marketing.  Attorneys are steamed, and justifiably so, at being tarnished in comments that are, by nature, one-sided and often inaccurate. It would be nice having the guidance of a more elaborated Rule 1.16 written for the 21st century, but we can't have nice things; instead, because of a law not written in the last century, but the century before the last century, we are left, at most, with some vaporous case law on “implied exceptions.”

About the Author

David Carr

Biography David C. Carr ~ Ethics Lawyer   David C. Carr, an attorney in private practice in Las Cruces, New Mexico, specializes in ethics advice to California lawyers, California State Bar discipline defense, and California attorney licensing.


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