BILL ANALYSIS Ó
AB 267
Page 1
Date of Hearing: April 2, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 267 (Chau) - As Introduced: February 7, 2013
PROPOSED CONSENT (As Proposed to Be Amended)
SUBJECT : EVIDENTIARY PRIVILEGES: LAWYER REFERRAL SERVICE-
CLIENT PRIVILEGE
KEY ISSUE : SHOULD CONFIDENTIAL COMMUNICATIONS BETWEEN A LAWYER
REFERRAL SERVICE AND ITS CLIENT BE GIVEN EVIDENTIARY PRIVILEGE
SIMILAR TO THAT WHICH NOW PROTECTS CONFIDENTIAL COMMUNICATIONS
BETWEEN LAWYERS AND THEIR CLIENTS?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill seeks to establish a new evidentiary privilege to
protect the confidentiality of communications between a lawyer
referral service (LRS) and its clients. Because prospective
clients consult a LRS for the same reason they would consult a
lawyer-namely, to obtain legal advice or to seek legal
representation-the author reasonably contends that the
prospective client in both cases should be able to speak
completely candidly about the legal matter, free from fear that
any embarrassing or self-incriminating information will be
subject to discovery in litigation. Existing law, however, does
not specifically extend the lawyer-client evidentiary privilege
to communications between a LRS and a client. This bill would
establish a stand-alone LRS-client privilege modeled after
several principles of existing lawyer-client privilege, but with
some appropriate differences. The bill is sponsored by the
Conference of California Bar Associations and there is no known
opposition.
SUMMARY : Establishes evidentiary privilege to protect the
confidentiality of communications between a lawyer referral
service (LRS) and its clients. Specifically, this bill , among
other things:
1)Establishes that, except as otherwise provided, a client,
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whether or not a party, has a privilege (hereafter "LRS-client
privilege) to refuse to disclose, and to prevent another from
disclosing, a confidential communication between client and
lawyer referral service, if the privilege is properly claimed
by the privilege holder, someone authorized by the holder, or
in some cases, the LRS.
2)Requires a lawyer referral service that has received or made a
communication subject to the LRS-client privilege to claim the
privilege if the communication is sought to be disclosed and
the client has not consented to the disclosure.
3)Provides that the right of any person to claim a LRS privilege
created by this bill is waived with respect to a communication
protected by the privilege if any holder of the privilege,
without coercion, has disclosed a significant part of the
communication or has consented to disclosure made by anyone.
4)Provides there is no privilege in certain situations where the
services of the LRS were sought or obtained to enable the
commission of a crime or fraud, or where the LRS reasonably
believes that disclosure is necessary to prevent a criminal
act likely to result in death or substantial bodily harm to a
person.
EXISTING LAW :
1)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 unless
the attorney reasonably believes the information is likely to
result in death or substantial bodily harm. (Business and
Professions Code Section 6068(e).)
2)Provides that a client of a lawyer has a privilege to refuse
to disclose, and to prevent another from disclosing, a
confidential communication between the client and lawyer if
the privilege is claimed by:
a) The holder of the privilege;
b) A person who is authorized to claim the privilege by the
holder; or
c) The person who was the lawyer at the time of the
confidential communication, except as provided. (Evidence
Code Section 954. Unless stated otherwise, all further
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statutory references are to that code.)
3)Provides that the right of any person to claim a privilege
provided by Section 954 (lawyer-client privilege), 980
(privilege for confidential marital communications), 994
(physician-patient privilege), 1014 (psychotherapist-patient
privilege), 1033 (privilege of penitent), 1034 (privilege of
clergyman), 1035.8 (sexual assault counselor-victim
privilege), or 1037.5 (domestic violence counselor-victim
privilege) is waived with respect to a communication protected
by the privilege if any holder of the privilege, without
coercion, has disclosed a significant part of the
communication or has consented to disclosure made by anyone.
(Section 912(a).)
4)Requires the lawyer who received or made a communication
subject to the lawyer-client privilege to claim the privilege
whenever he is present when the communication is sought to be
disclosed, and is authorized to claim the privilege. (Section
955.)
5)Requires the State Bar, with the approval of the Supreme
Court, to formulate and enforce rules and regulations which,
among other things, do the following:
a) Establish minimum standards for lawyer referral services
that include provisions ensuring that panel membership
shall be open to all attorneys practicing in the
geographical area served who are qualified by virtue of
suitable experience.
b) Require that an entity seeking to qualify as a lawyer
referral service register with the State Bar and obtain
from the State Bar a certificate of compliance with the
minimum standards for lawyer referral services.
c) Require each lawyer who is a member of a certified
lawyer referral service to comply with all applicable
professional standards, rules, and regulations, and to
possess a policy of errors and omissions insurance, as
specified. (Business and Professions Code Section
6155(f).)
COMMENTS : This bill, sponsored by the Conference of California
Bar Associations, seeks to establish a new evidentiary privilege
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to protect the confidentiality of communications between a
lawyer referral service (LRS) and its clients. Because
prospective clients consult a LRS for the same reason they would
consult a lawyer-namely, to obtain legal advice or to seek legal
representation-the author reasonably contends that the
prospective client in both cases should be able to speak
completely candidly about the legal matter, free from fear that
any embarrassing or self-incriminating information will be
subject to discovery in litigation. Existing law, however, only
provides for lawyer-client evidentiary privilege, which does not
extend to communications between a LRS and a client. This bill
would establish a stand-alone LRS-client privilege modeled after
principles of existing lawyer-client privilege, but with some
appropriate differences.
Stated Need for the Bill . According to the author:
AB 267 provides needed certainty to current law.
There is no specific statutory privilege to keep
confidential the information provided by a prospective
client to a LRS employee. The confidentiality of this
information may be protected under various
interpretations of the attorney-client privilege
statutes, but it is unclear, and this uncertainty may
reduce the efficacy of communications between
prospective clients and lawyer referral services. The
purpose of the bill is to remove all uncertainty as to
whether such communications are protected from
discovery in litigation, keep these communications
confidential, and to ensure free and candid
communication between prospective clients and LRS that
will enable the LRS to make the most appropriate
referral.
Background on lawyer referral services. A "lawyer referral
service" operates for the direct or indirect purpose of
referring potential clients to lawyers. (Rule 4, "Rules and
Regulations of the State Bar of California Pertaining to Lawyer
Referral Services.") The purposes of a LRS include (1) to
provide a way in which any person may be referred to a
qualified, insured lawyer who is able to render and is
interested in rendering needed legal services; and (2) to
provide information about lawyers and the availability of legal
services which will aid the public in their selection of a
lawyer. (Rule 5.1.) An entity seeking to qualify as a lawyer
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referral service must register with the State Bar and obtain
from the State Bar a certificate of compliance with the minimum
standards for lawyer referral services. (BPC Section 6155(f).)
Certification shall be renewed at least every two years, and
denial of certification or recertification may occur if the
State Bar determines noncompliance with either statutory
requirements or minimum standards governing LRS. (BPC Section
6155(g).)
The ABA Model Rules endorse evidentiary privilege for LRS-client
communications. In 1989, following a long review process by
state and local bar association and lawyer referral experts from
the public and private sector, the American Bar Association
(ABA) adopted model rules for the operation of public service
lawyer referral programs. The model rules are aspirational and
intended to provide guidance to state legislatures, but have not
been adopted in California. Nevertheless, Rule XIV of the ABA's
"Model Rules Governing Lawyer Referral and Information Services"
specifically provides that disclosure of information to a lawyer
referral service for the purpose of seeking legal assistance
shall be deemed a privileged lawyer-client communication. The
Commentary to Rule XIV explains: "Since a client discloses
information to a lawyer referral service for the sole purpose of
seeking the assistance of a lawyer, the client's communication
for that purpose should be protected by lawyer-client
privilege." This bill would establish a stand-alone LRS
privilege that would also accomplish the goal of protecting the
confidentiality of communications that a client discloses to a
lawyer referral service.
Author's Amendments: In order to more fully harmonize the
LRS-privilege proposed by this bill with lawyer-client privilege
under existing law, the author has proposed to make several
amendments in this Committee. Among other things, the proposed
amendments: (1) standardize the definitions of "lawyer referral
service", "client", "confidential communication between client
and LRS" and "holder of the privilege"; (2) clarify the
relationship between LRS and client; (3) incorporate two
exceptions to the privilege in cases where LRS services were
sought or obtained to commit a crime or fraud, or where
disclosure is believed necessary to prevent a criminal act
resulting in substantial bodily harm to an individual.
Contrasts between proposed LRS privilege and lawyer-client
privilege. As proposed to be amended, the LRS privilege created
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by this bill more closely reflects lawyer-client privilege under
current law. For example, the author's amendments establish
consistent and analogous definitions of key terms, who holds the
privilege, and the precise conditions under which the privilege
can be claimed. However, not every characteristic of the
lawyer-client privilege has been replicated by the author to
apply to the proposed LRS-client privilege.
A. Exceptions for probate related matters. Evidence Code
Sections 957, 959, 960, and 961 limit the scope of the lawyer
client-privilege because they eliminate privilege in a number of
situations related to issues involving wills, deeds, trusts, and
probate matters affecting an interest in property. For example,
Section 959 provides that no lawyer-client privilege exists as
to a communication relevant to an issue concerning the intention
or competence of a client executing an attested document of
which the lawyer is an attesting witness, or concerning the
execution or attestation of such a document. This bill does not
reflect such an exception because, according the author, by
their nature lawyer referral services do not witness the signing
of documents, making an exception unnecessary.
Similarly, the author contends that because lawyer referral
services do not provide legal advice regarding probate matters,
nor engage in communications relevant to issues concerning the
validity of deeds of conveyance or wills, there is no need to
replicate exceptions analogous to Section 957, 960 and 961 under
the statute establishing LRS-client privilege. At the time of
this analysis, it could not be confirmed that every LRS in the
state does not, in fact, engage in communications with clients
relating to trust, will, or probate matters.
B. Exception for breach of duty. Section 958 provides that
there is no lawyer-client privilege 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.
According to the California Law Revision Commission, this
exception exists because it would be unjust to permit a client
to accuse his attorney of breach of duty and to invoke the
privilege to prevent the attorney from introducing evidence to
defend the charge. It would also be unjust to permit the client
to refuse to pay his attorney's fee and invoke the lawyer-client
privilege to defeat the attorney's claim. (7 Cal. Law Rev.
Comm. Reports 1 (1965).)
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As proposed to be amended, this bill would not contain an
analogous exception for a breach of duty arising out of the
LRS-client relationship. According to the sponsor, this
exception is not appropriate in the LRS context because it is
too broad and may result in unintended consequences. CCBA
states:
Section 958 principally provides protection for the
attorney in malpractice actions, by permitting the attorney
to reveal otherwise privileged information when accused of
breach by the client. It also allows the attorney to
reveal otherwise privileged information if the client
breaches their agreement (e.g., doesn't pay). Neither of
these circumstances is generally applicable to the
LRS-client relationship. Malpractice suits against LRS are
not an issue, for there are no negligent referral cases
stemming from a LRS in the country, to our knowledge.
Furthermore, the amount that changes hands - or is supposed
to- between the client and LRS is not enough to warrant
legal action. (An analogous exception to Section 958) also
could encourage a third party to try to get around the
privilege by claiming that either the LRS or the client
breached the contractual relationship and therefore the
third party should be able to compel disclosure, which is
contrary to the objective of the statute.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334