BILL ANALYSIS                                                                                                                                                                                                    



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          ASSEMBLY THIRD READING
          AB 267 (Chau)
          As Amended April 9, 2013
          Majority vote 

           JUDICIARY           8-1                                         
           
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          |Ayes:|Wieckowski, Alejo, Chau,  |     |                          |
          |     |Dickinson, Garcia,        |     |                          |
          |     |Maienschein, Muratsuchi,  |     |                          |
          |     |Stone                     |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Wagner                    |     |                          |
          |     |                          |     |                          |
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           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,  
            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 a  
            LRS, if the privilege is properly claimed by the privilege  
            holder, someone authorized by the holder, or in some cases,  
            the LRS. 

          2)Requires a LRS 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  








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            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.  

          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.  

          3)Requires the State Bar, with the approval of the Supreme  
            Court, to formulate and enforce minimum standards for lawyer  
            referral services.  

           FISCAL EFFECT  :  None

           COMMENTS  :  This bill, sponsored by the Conference of California  
          Bar Associations, seeks to establish a new evidentiary privilege  
          to protect the confidentiality of communications between a 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  








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          principles of existing lawyer-client privilege, but with some  
          appropriate differences.  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.

          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 LRS must  
          register with the State Bar and obtain from the State Bar a  
          certificate of compliance with the minimum standards for lawyer  
          referral services.  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.  

          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  








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          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 LRS  
          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 LRS.

          Recent amendments to this bill are intended to more fully  
          harmonize the proposed LRS-privilege with lawyer-client  
          privilege under existing law, although certain appropriate  
          differences remain.  The current bill now establishes consistent  
          and analogous definitions of key terms, describes who holds the  
          privilege, and outlines the precise conditions under which the  
          privilege can be claimed.  


           Analysis Prepared by  :    Anthony Lew / JUD. / (916) 319-2334 


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