BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2713|
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THIRD READING
Bill No: AB 2713
Author: Pavley (D), et al
Amended: 6/16/04 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-2, 6/22/04
AYES: Escutia, Cedillo, Ducheny, Kuehl, Sher
NOES: Morrow, Ackerman
ASSEMBLY FLOOR : 65-7, 5/10/04 - See last page for vote
SUBJECT : Representation of governmental organizations
SOURCE : California Attorneys, Administrative Law
Judges, Deputy
Labor Commissioners and Hearings Officers in
State
Employment (CASE)
DIGEST : This bill authorizes an attorney who, in the
course of representing a governmental organization, learns
of improper governmental activity, as defined, to urge
reconsideration of the matter and to refer it to a higher
authority in the organization. The bill also authorizes
the attorney, in specified circumstances, to refer the
matter to a law enforcement agency or to another
governmental agency and would exempt the attorney from
disciplinary action for making a referral of the matter.
ANALYSIS : Existing law specifies the duties of an
attorney, including the duty to maintain inviolate the
CONTINUED
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confidence of his or her client, at every peril to himself
or herself.
Existing Rule of Professional Conduct 3-600 provides, in
part, that if an attorney knows that an actual or apparent
agent of the client organization acts or intends to act in
a manner that is or may be a violation of law reasonably
imputable to the organization, or in a manner which is
likely to result in substantial injury to the organization,
the member may not breach his or her duty of
confidentiality, but may only urge reconsideration of the
matter, refer the matter to the next higher authority in
the organization, or resign.
This bill would provide that an attorney who learns of a
client governmental organization's improper activity may
take one or both of the following actions: (a) urge
reconsideration of the matter while explaining its likely
consequences to the organization, or (b) refer the matter
to a higher authority in the organization, including, if
warranted by the seriousness of the matter, referral to the
highest internal authority that can act on behalf of the
organization.
This bill also would create a limited exception to the
attorney's duty of confidentiality under Business and
Professions Code Section 6068(e) to permit the attorney to
refer the matter to the law enforcement agency charged with
responsibility over the matter or to any other governmental
agency or official with oversight or regulatory
responsibility over the matter. This bill would protect
the attorney from disbarment, suspension or other
disciplinary action for that action if the attorney acted
reasonably and in good faith in determining the propriety
of making the referral, in identifying the appropriate
agency or official to contact, and in cooperating with that
agency or official. Nor shall an attorney's conduct be
cause for disbarment, suspension, or other discipline if
the attorney acted reasonable and in good faith in choosing
to cooperate with an agency or official in the execution of
the oversight or regulatory responsibilities. The bill
would not protect the attorney for initiating any further
affirmative conduct to address the improper governmental
activity once the referral has been made.
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This bill would state in legislative findings that
"[g]enerally, the governmental organization itself is the
client of the attorney, and not any official or entity
within the client organization," and that "[t]he specific
governmental organization that is the client of the
attorney is defined by applicable law."
This bill would define the term "improper governmental
activity" and specify that any discovered improper
activities need not be within the scope of the services for
which the attorney was engaged as counsel by the
governmental organization.
Comments
Genesis of proposal and need for bill . AB 2713, like its
predecessor, attempts to address a problem facing attorneys
with governmental organization clients who discover that
government resources are being criminally misused or that
government officials are breaking the law. This issue was
brought to the forefront in 2000 when Department of
Insurance attorney Cindy Ossias, who blew the whistle on
wrongdoings within the department. Her actions, however,
lead to a complaint being filed against her with the State
Bar of California. While the State Bar eventually
determined to not to file disciplinary charges after its
investigation, proponents of AB 2713 assert that her case
illustrates the need to draw bright lines that will enable
government lawyers to act in the greater public interest
without jeopardizing their legal careers when they learn of
and report criminal government misconduct.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 7/1/04)
California Attorneys, Administrative Law Judges, Deputy
Labor Commissioners and Hearings Officers in State
Employment (CASE) (source)
Insurance Commissioner Garamendi
Public Employees for Environmental Responsibility (PEER)
Sierra Club of California
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League of California Cities
Cities of Bellflower and San Luis Obispo
California State Employees Association
Consumer Attorney of California
ARGUMENTS IN SUPPORT : Proponents of AB 2713 argue that
the bill "addresses an anomalous situation for public
agency lawyers who, on one hand as civil servants, are
explicitly protected by whistleblower protection laws, such
as Cal. Gov. Code Section 8547 et seq. from occupational
reprisal for disclosing improper governmental activity but,
on the other hand, are vulnerable to loss of their license
or other professional discipline for that same disclosure
if the disclosure arises from their role as attorneys
within the agency." [Letter from Public Employees for
Environmental Responsibility (PEER).]
PEER also reports that the State of Hawaii, which has had a
public attorney whistleblower statute since 1994, has not
had a disruption in its government.
The California Attorneys, Administrative Law Judges and
Hearing Officers in State Employment (CASE), sponsor of AB
2713, also contend that AB 2713 is "necessary to lift the
heavy burden of potential sanctions by the State Bar from
the minds of state attorneys who fulfill their duty to
serve the public by disclosing official misconduct?[T]his
burden is not only grossly unfair to the state attorney; it
is harmful to the citizens of this state. The chilling
effect this burden has on state attorneys works to deprive
the people of the State of California of vital information
regarding improper conduct by officials in State
government."
ASSEMBLY FLOOR :
AYES: Aghazarian, Benoit, Berg, Bermudez, Bogh, Calderon,
Canciamilla, Chan, Chavez, Chu, Cogdill, Cohn, Corbett,
Correa, Diaz, Dutra, Dutton, Dymally, Firebaugh, Frommer,
Garcia, Goldberg, Hancock, Harman, Jerome Horton, Shirley
Horton, Houston, Jackson, Keene, Kehoe, Koretz, Laird,
Leno, Leslie, Levine, Lieber, Longville, Lowenthal,
Maddox, Maldonado, Matthews, Maze, McCarthy, Mullin,
Nakanishi, Nakano, Nation, Negrete McLeod, Oropeza,
Parra, Pavley, Plescia, Reyes, Richman, Ridley-Thomas,
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Runner, Salinas, Simitian, Spitzer, Vargas, Wiggins,
Wolk, Wyland, Yee, Nunez
NOES: Bates, Campbell, Cox, Haynes, Mountjoy, Pacheco,
Strickland
NO VOTE RECORDED: Daucher, La Malfa, La Suer, Liu,
Montanez, Samuelian, Steinberg, Wesson
RJG:sl 7/1/04 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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