BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator Bruce McPherson, Chair A
2003-2004 Regular Session B
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AB 1101 (Steinberg) 1
As Amended April 10, 2003
Hearing date: June 10, 2003
Business and Professions Code; Evidence Code
MK:br
ATTORNEY-CLIENT CONFIDENCES
HISTORY
Source: Author
Prior Legislation: SB 645 (Presley) - Chapter 982, Stats. 1993
Support: State Bar Board of Governors; California District
Attorneys Association; Los Angeles County District
Attorney's Office; Gray Panthers California; California
State Attorneys, Administrative Law Judges, Deputy
Labor Commissioners and Hearing Officers in State
Employment (CASE)
Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD AN EXCEPTION BE MADE TO THE DUTY OF AN ATTORNEY TO MAINTAIN
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CLIENT CONFIDENCES WHEN THE ATTORNEY REASONABLY BELIEVES THE
DISCLOSURE IS NECESSARY TO PREVENT A CRIMINAL ACT THAT THE ATTORNEY
REASONABLY BELIEVES IS LIKELY TO RESULT IN DEATH OF, OR SUBSTANTIAL
BODILY HARM TO AN INDIVIDUAL?
PURPOSE
The purpose of this bill is to create an exception to the duty
of an attorney to maintain client confidences when the attorney
reasonably believes the disclosure is necessary to prevent a
criminal act that the attorney reasonably believes is likely to
result in death of or substantial bodily harm to an individual.
Existing law provides that it is the duty of an attorney to
maintain inviolate the confidence, and at every peril to himself
or herself to preserve the secrets, of his or her client.
(Business and Professions Code 6068(e).)
This bill provides an exception to an attorney's duty of
confidentiality by providing that an attorney may, but is not
required to, reveal confidential information relating to the
representation of a client to the extent that the attorney
reasonably believes the disclosure is necessary to prevent a
criminal act that the attorney reasonably believes is likely to
result in the death of, or substantial bodily harm to, an
individual.
Existing law provides for an attorney-client privilege whereby
the client, as holder of the privilege, may refuse to disclose
or prevent another from disclosing a confidential communication
between himself or herself and his or her attorney. (Evidence
Code 954.)
Existing law provides for specified exceptions to the
attorney-client privilege including that there is no privilege
if an attorney 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 attorney believes is likely to result in
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death or substantial bodily harm. (Evidence Code 956.5.)
This bill amends an existing exception to the attorney-client
privilege to provide that no privilege exists when the attorney
reasonably believes that disclosure is necessary to prevent a
criminal act that the attorney reasonably believes is likely to
result in the death of, or substantial bodily harm to, an
individual by other individuals in addition to a client.
COMMENTS
1. Need for This Bill
According to the author:
AB 1101 will codify what has long been public policy
in California and nationwide. Under the bill,
California attorneys will be permitted, not required,
to disclose client confidences without risking State
Bar sanction, when the attorney "reasonably believes
disclosure of the confidence or secret is necessary
to prevent the commission of a criminal act likely to
result in the death of, or substantial bodily harm
to, an individual."
All other states across the nation, as well as the
ABA's Model Rules and Model Code, and the American
Law Institute, have an exception to the duty of
confidentiality for threats of death and substantial
bodily injury. California attorneys stand alone in
being subject to State Bar discipline for disclosing
such threats.
In 1993, the Legislature passed SB 645, enacting
Evidence Code Section 956.5 which creates an
exception to the attorney-client privilege when an
attorney "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
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likely to result in death or substantial bodily
harm."
This exception, however, only applies in the limited
situation when an attorney is subpoenaed and is
compelled to testify. Evidence Code Section 956.5
does not create an exception to an attorney's duty of
confidentiality. Thus an attorney is still subject to
State Bar discipline for disclosing a threat of death
or serious bodily injury - even when the attorney
believes that those threats will be acted on.
Recognizing the need for an exception to an
attorney's duty of confidentiality, the State Bar has
tried three times to promulgate a State Bar Rule of
Professional Conduct creating such an exception - the
first two times before Evidence Code Section 956.5
was enacted (1987 and 1992) and once after Evidence
Code Section 956.5 was enacted (1998). All three
times the Supreme Court has rejected the Bar's
proposed rule the first time citing concerns about
its authority to modify a statutory rule codified by
the Legislature - and the second and third time
without comment. Because California's duty of
confidentiality appears in statute, (B&P Code
6068(e)), not in the State Bar Rules, it is the
Legislature, not the Supreme Court that has the
authority to create exceptions to that duty.
AB 1101 will codify this limited exception to an
attorney's duty of confidentiality amending both B&P
Code Section 6068(e) and Evidence Code Section 956.5
thereby clarifying and conforming California law -
making the duty of confidentiality consistent with
the policy articulated by the Legislature 10 years
ago in enacting Evidence Code Section 956.5.
2. Disclosure Exception to Duty of Confidentiality Permissive,
Not Mandatory
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This bill provides an exception to an attorney's duty of
confidentiality by providing that an attorney may, but is not
required to, reveal confidential information relating to the
representation of a client to the extent that the attorney
reasonably believes the disclosure is necessary to prevent death
or substantial bodily harm. This disclosure is permissive, not
mandatory. The bill does not impose an affirmative obligation
on an attorney to disclose in these situations. Instead, each
individual attorney is left to determine whether or not he or
she possess the reasonable belief that disclosure is necessary
to prevent death or substantial bodily harm.
3. Comparison of Attorney-Client Privilege and Duty of
Confidentiality
There are two related bodies of law governing the relationship
between an attorney and his or her client: the attorney-client
privilege under Evidence Code Section 956.5 and the duty of
confidentiality established in Business and Professions Code
Section 6068(e).
The attorney-client privilege is a narrow evidentiary privilege,
applying in judicial and other proceedings when an attorney is
called as a witness or otherwise required to produce evidence
related to a client. The privilege "allows a client to prevent
a witness from revealing confidential communications between
client and lawyer. . . . By assuring the client of the lawyer's
confidentiality, the privilege encourages the client to frankly
disclose information to assist the lawyer in the
representation." ( California's Duty of Confidentiality: Is It
Time for a Life-Threatening Criminal Act Exception ? 39 San Diego
L. Rev. 307 (2002).) Existing law provides for specified
exceptions to the privilege.
The duty of confidentiality, on the other hand, is broader than
the attorney-client privilege. It applies more extensively than
just those situations where evidence is sought from the attorney
through compulsion of law. It has been said that the "duty need
not be triggered by another party seeking to coerce disclosure;
it is simply one of the lawyer's paramount duties she must
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observe at all times." (Id.) And, in California, there are no
exceptions to the duty.
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4. ABA Model Rules and Other States' Rules Concerning Client
Confidences
As the author notes above, California is the only state which
does not have an exception to an attorney's duty of
confidentiality. According to a 2001 study, 11 states have a
rule which requires attorneys to reveal confidential client
information relating to the client's intention to commit a crime
likely to result in death or bodily injury. Thirty-seven states
provide that an attorney may disclose the information in those
instances. Also, the ABA's Model Rules of Professional Conduct
provide an exception to an attorney's duty of confidentiality,
specifically providing that "a lawyer may reveal information
relating to the representation of a client to the extent the
lawyer reasonably believes necessary to prevent reasonably
certain death or substantial bodily harm."
5. Recent Cases
Recent cases have raised the issues touched upon by this bill.
For example, in People v. Dang (2001) 93 Cal.App.4th 1293, the
court held that the testimony of the defendant's defense
attorney did not violate the attorney-client privilege because
the threats he made to the attorney were within the exception to
the privilege since they led the attorney to reasonably believe
that disclosure was necessary to prevent his client from
committing a criminal act likely to result in death or
substantial bodily harm. In the case, the defendant, who had
been charged with violent felonies, told his attorney 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." (Dang at 1295.) Although the court held that there was
no violation of the attorney-client privilege, the attorney in
the case could have been subject to disciplinary action for
violating California's strict duty of confidentiality, which has
no exceptions.
6. History of State Bar Actions on the Issue
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Since 1987, the State Bar has attempted three times to
promulgate a Rule of Professional Conduct, Rule 3-100, providing
for an exception to California's strict duty of confidentiality
for threats of death or serious bodily injury. Each time, the
Supreme Court has rejected the proposed rule providing, in 1987,
that the rejection was based on concerns about the Court's
authority to modify a statutory rule. As the author explains,
"[b]ecause California attorneys are governed by both statute and
State Bar Rules and the duty of confidentiality appears in
statute, the Supreme Court did not feel it had the authority to
create an exception to the statutory duty of confidentiality
through the State Bar rulemaking process."
7. Extension of Exception to Attorney-Client Privilege to Cover
Acts Not Committed by Client
This bill amends the exception to the attorney-client privilege
to provide that no privilege lies when the attorney reasonably
believes that disclosure is necessary to prevent a criminal act
likely to result in death or substantial bodily harm. Existing
law, on the other hand, provides for a similar exception but
only as to those acts committed by a client. On this point, the
author states:
. . . the better policy is that the attorney be
permitted to reveal "a confidence or secret when an
attorney reasonably believes that disclosure . . .
is necessary to prevent the commission of a criminal
act likely to result in the death of, or substantial
bodily harm to, an individual." (Emphasis added.)
Why should the exception be limited to only those
potential acts of the client? Isn't the better
policy to prevent all death and substantial bodily
injury? Of course, the attorney has a higher
threshold for having a reasonable belief that a
third party will actually carry out a threat of
death or substantial bodily injury - but that is
written into the language of AB 1101. . . .
Moreover, in the first two rules the State Bar
attempted to promulgate, the threats of death/SBI
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were not limited to the client. . . . So there is
precedent for having the exception include acts not
committed by the client.
In addition, it is important to note that the ABA recently
amended its Model Rules of Professional Conduct, Rule 1.6(b)(1)
to delete language limiting the exception to the duty of
confidentiality to criminal acts committed by a client.
Instead, the rule now applies to acts committed by individuals
in addition to a client, recognizing "the overriding value of
life and physical integrity." (Comment 6, ABA Model Rules of
Professional Conduct, Rule 1.6(b)(1).)
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