BILL ANALYSIS Ó
AB 267
Page 1
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
AB 267
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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
FN: 0000099