BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 267 (Chau)
As Amended April 9, 2013
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
RD
SUBJECT
Evidentiary Privileges: Lawyer Referral Service-Client Privilege
DESCRIPTION
This bill would establish a lawyer referral service (LRS)-client
evidentiary privilege to protect confidential communications, as
specified. This bill would provide that no privilege exists
where: (1) the services of the LRS were sought or obtained to
enable or aid anyone to commit or plan to commit a crime or a
fraud; or (2) disclosure of the confidential communication is
necessary to prevent a criminal act that the LRS staff person
reasonably believes is likely to result in the death of, or
substantial bodily harm to, an individual. This bill would
additionally provide the LRS-client privilege would be waived in
accordance with existing law.
BACKGROUND
An evidentiary privilege permits an otherwise competent witness
to refuse to testify and/or prevent another from testifying.
Privileges are policy exclusions, unrelated to the reliability
of the information involved, which are granted because it is
considered more important to keep that information confidential
than it is to require disclosure of all the information relevant
to the issues in a pending proceeding. For example, to protect
the lawyer-client relationship, it is necessary to prevent
disclosure of confidential communications made in the course of
that relationship. (Comments to Evid. Code Sec. 910.) Whereas
privileges of a witness under the Federal Rule of Evidence are
governed by the principles of common law as interpreted by
United States courts in light of "reason and experience," the
(more)
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only privileges that are recognized in California are those
statutory privileges expressly codified in the Evidence Code.
(See Fed. Rules of Evid., Rule 501; Evid. Code Sec. 911.)
To date, California has codified several evidentiary privileges,
recognizing the need to protect the confidentiality of certain
communications. Among those are the: lawyer-client privilege,
spousal privilege, confidential marital communications
privilege, physician-patient privilege, psychotherapist-patient
privilege, clergyman-penitent privilege, sexual assault
counselor-victim privilege, domestic violence counselor-victim
privilege, and human trafficking caseworker-victim privilege.
Yet other statutory privileges protect official information
acquired in confidence by a public employee and the identity of
informants, protect persons from having to reveal their votes in
public elections, and protect against disclosure of trade
secrets. (Evid. Code Sec. 930 et seq.)
Under the existing lawyer-client privilege, when a person
discusses their case with an attorney, the information shared
with that attorney is generally privileged, including
information provided in the initial consult (i.e. before hiring
the attorney). Even the name or decision to retain counsel can
be privileged. In order to find an attorney, some people seek
advice from lawyer referral services, which are specified
entities that assist people find a lawyer experienced in the
area in which they are having legal problems. As such, lawyer
referral services can be made privy to information relating to a
person's legal problem or case in the performance of that
service.
In 1989, American Bar Association (ABA) adopted model rules for
the operation of these programs, including a rule that
disclosure of information to a lawyer referral service for the
purpose of seeking legal assistance shall be deemed a privileged
lawyer-client communication. In its commentary, the ABA
explained that "[s]ince 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." (ABA
Model Supreme Court Rules Governing Lawyer Referral and
Information Services (Aug. 1993), Rule XIV.) Though ABA model
rules are designed to provide guidance to states, California has
not expressly addressed the confidentiality of communications
made to a lawyer referral service.
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This bill seeks to codify a privilege similar to the
lawyer-client privilege, for confidential communications between
a lawyer referral service and client.
CHANGES TO EXISTING LAW
1.Existing law governs the advertising and operation of lawyer
referral services and, among other things, requires the State
Bar, with Supreme Court approval, to formulate and enforce
rules and regulations that, among other things:
require that an entity seeking to qualify as a lawyer
referral service register with the State Bar and obtain a
certificate of compliance with the minimum standards
established by the State Bar;
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; and
require that, to increase access to the justice system
for all Californians, lawyer referral services establish
separate ongoing activities or arrangements that serve
persons of limited means. (Bus & Prof. Code Sec.
6155(f).)
Existing law provides that an attorney has the duty to
maintain inviolate the confidence, and at every peril to
himself or herself to preserve the secrets, of his or her
client. However, the 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
death or substantial bodily harm. (Bus. & Prof. Code Sec.
6068(e).)
Existing law provides that no person has a privilege to refuse
to be a witness; to refuse to disclose any matter or to refuse
to produce any writing, object, or thing; or prevent another
person from the same unless otherwise provided by statute.
(Evid. Code Sec. 911.)
Existing law provides for a lawyer-client privilege, and
provides that no privilege applies:
if the services of the lawyer were sought or obtained to
enable or aid anyone to commit or plan to commit a crime or
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a fraud;
if the lawyer reasonably believes that disclosure of a
confidential communication relating to representation of a
client is necessary to prevent a criminal act that the
lawyer reasonably believes is likely to result in death or
substantial bodily harm;
as to a communication that is relevant to an issue of
breach, by the lawyer or by the client, of a duty arising
out of the lawyer-client relationship;
as to specified communications that are relevant to
issues in certain probate matters; or
in specified circumstances where two or more clients
have retained or consulted a lawyer upon a matter of common
interest. (Evid. Code Sec. 950 et seq.)
This bill would codify a lawyer referral service (LRS)-client
privilege, and would provide that no privilege applies:
if the services of the LRS were sought or obtained to
enable or aid anyone to commit or plan to commit a crime or
a fraud; or
if a staff person of the LRS who receives a confidential
communication in processing a request for legal assistance
reasonably believes that disclosure of the confidential
communication is necessary to prevent a criminal act that
the staff person of the LRS reasonably believes is likely
to result in the death of, or substantial bodily harm to,
an individual.
This bill would define "client" as a person who, directly or
through an authorized representative, consults an LRS for the
purpose of retaining, or securing legal services or advice
from, a lawyer in his or her professional capacity, and
includes an incompetent who consults the LRS himself or
herself or whose guardian or conservator consults the LRS on
his or her behalf.
This bill would define "lawyer referral service" as an LRS
certified under, and operating in compliance with, Section
6155 of the Business and Professions Code above, or an
enterprise reasonably believed by the client to be an LRS
certified under, and operating in compliance with, that
section.
1.Existing law provides that the right of a person to claim
specified privileges is waived with respect to a protected
communication if the holder of the privilege has disclosed a
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significant part of that communication or consented to
disclosure, without coercion. Existing law provides that a
disclosure does not constitute a waiver where it was
reasonably necessary to accomplish the purposes for which the
services of a lawyer, physician, psychotherapist, sexual
assault counselor, or domestic violence counselor was
consulted. (Evid. Code Sec. 912(a), (d).)
This bill would apply these and other related provisions to
the LRS-client privilege.
2.Existing law defines "confidential communication between
client and lawyer" as information transmitted between a client
and his or her lawyer in the course of that relationship and
in confidence by a means that, so far as the client is aware,
does not disclose the information to third persons other than
those who are present to further the interest of the client in
the consultation or those to whom disclosure is reasonably
necessary for the transmission of the information or the
accomplishment of the purpose for which the lawyer is
consulted, and includes a legal opinion formed and the advice
given by the lawyer in the course of that relationship.
(Evid. Code Sec. 952.)
This bill would define "confidential communication between
client and lawyer referral service" as information transmitted
between a client and an LRS in the course of that relationship
and in confidence by a means that, so far as the client is
aware, does not disclose the information to third persons
other than those who are present to further the interests of
the client in the consultation or those to whom disclosure is
reasonably necessary for the transmission of the information
or the accomplishment of the purpose for which the LRS is
consulted.
3.Existing law defines the holder of the lawyer-client privilege
as the client; the client's guardian or conservator if
applicable; the client's personal representative if the client
is dead; or the client's successor, assignee, or trustee.
(Evid. Code Sec. 953.)
Existing law provides a client the privilege to refuse to
disclose, and to prevent another from disclosing, a
confidential communication between client and lawyer if the
privilege is claimed by:
the holder of the privilege;
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a person authorized to claim the privilege by the holder
of the privilege; or
the person who was the lawyer at the time of the
confidential communication, but such person may not claim
the privilege if there is no holder of the privilege in
existence or if he is otherwise instructed by a person
authorized to permit disclosure. (Evid. Code Sec. 954.)
Existing law provides that the relationship of attorney and
client shall exist between a law corporation as defined, and
the persons to whom it renders professional services, as well
as between such persons and members of the State Bar employed
by such corporation to render services to such persons.
(Evid. Code Sec. 954.)
Existing law provides that the lawyer who received or made a
communication subject to the privilege must claim the
privilege whenever he is present when the communication is
sought to be disclosed and authorizes the lawyer to claim the
privilege. (Evid. Code Sec. 955.)
This bill would define "holder of the privilege" as the
client; the client's guardian or conservator if applicable;
the client's personal representative if the client is dead; or
the client's successor, assignee, or trustee.
This bill would provide a client the privilege to refuse to
disclose, and to prevent another from disclosing, a
confidential communication between client and LRS if the
privilege is claimed by:
the holder of the privilege;
a person authorized to claim the privilege by the holder
of the privilege; or
the LRS or a staff person thereof, but the LRS or a
staff person thereof may not claim the privilege if there
is no holder of the privilege in existence or if the LRS or
a staff person thereof is otherwise instructed by a person
authorized to permit disclosure.
This bill would provide that the relationship of LRS and
client, for the purposes of this privilege, shall exist
between an LRS, as defined, and the persons to whom it renders
services, as well as between such persons and anyone employed
by the LRS to render services to such persons.
This bill would provide that an LRS that has received or made
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a communication subject to this privilege must claim the
privilege if the communication is sought to be disclosed and
the client has not consented to the disclosure.
COMMENT
1. Stated need for the bill
According to the author:
AB 267 would create a statutory privilege for communications
between a prospective client and a lawyer referral service
(LRS) certified by the State Bar of California, similar to the
attorney-client privilege and other privilege[s] listed in the
Evidence Code. 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 or recommendation. [ .
. . ]
Like individuals who consult with lawyers, individuals who
consult lawyer referral services do so to obtain legal advice
or representation to help them solve a legal problem. In
order to obtain such advice or representation, it is
imperative that the prospective client be able to be
completely candid about the nature and extent of the problem,
free from fear that any embarrassing or self-incriminating
information will be subject to discovery in litigation. [ .
. . ] AB 267 will help facilitate honest and open
communications between prospective clients and lawyer referral
services and make clear that those communications are
privileged. This, in turn, will make it possible for the
lawyer referral services to most effectively serve those
prospective clients, either by referring them to attorneys who
are experienced and knowledgeable in the appropriate areas of
law, or by recommending other courses of action which will
best serve the client's interest.
2. Lawyer referral services
This bill would generally protect the confidentiality of
communications between a lawyer referral service (LRS) and a
person who consults with an LRS in order to obtain a referral to
an appropriate attorney for legal services or advice. When a
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person contacts an LRS, he or she can expect to be interviewed
by the LRS staff about his or her legal problem and be matched
with a lawyer who is experienced in the appropriate area of law.
Additionally, if the LRS determines that the person's problem
can be resolved without a lawyer, the service will try to
provide information or the names of other organizations or
agencies that may be able to help that person.
Under existing law, the Business and Professions Code generally
governs lawyer advertisements, and in doing so prohibits any
person or entity from engaging in referral of potential clients
to attorneys, unless registered with the State Bar. In turn,
the State Bar is required, with the approval of the Supreme
Court, to formulate and enforce rules and regulations to, among
other things, establish the minimum standards for and
certification of lawyer referral services. (Bus. & Prof. Code
Sec. 6155.) Those State Bar's Rules and Regulations note that
the purposes of an LRS are:
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;
to provide information about lawyers and the availability of
legal services which will aid the public in their selection of
a lawyer;
to inform the public when and where to seek legal and dispute
resolutions services;
to provide general, legal, and dispute resolution information
needed by the public;
to improve the quality of legal services available to the
public; and
to provide access to affordable legal services to the public.
(Rule 5.1.)
To achieve these purposes, the rules and regulations require
that each LRS establish such number and variety of panels of
attorneys (such as moderate and no fee panels, foreign language
panels, and alternative dispute panels) as will best enable it
to make referrals that are responsive to individual client
needs. Moreover, in "an attempt to increase access to the
justice system for all Californians" an LRS must establish
separate ongoing activities or arrangements that serve persons
of limited means, unless it can demonstrate that it is
unreasonable and impractical to do so. These include, for
example, programs that: provide free legal services to
indigents; provide legal services at a reduced fee; and provide
free legal advice and clearing house referral services to the
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public; or other cooperative efforts with existing pro bono
programs. (Rule 12.5.)
Staff notes that while an argument might be made that a person
should reveal as little information about their case other than
the type and general dispute in obtaining a referral to an
attorney through lawyer referral services, those services are
designed to operate as a consumer service that goes beyond a
phone book directory of lawyers. Accordingly, if these entities
are to be effective in helping people obtain necessary services,
it is feasible that person may need to divulge information that
unfortunately could be used against them by an adverse party.
In support of this bill, the Legal Aid Association of California
writes: "[u]nfortunately, if a prospective client reveals
potentially damaging secrets to [an LRS] in an effort to obtain
legal advice or counsel, there is not statutory privilege to
rely on. If the person handling intake for the [LRS] is not an
attorney, the client runs the risk that an opposing lawyer could
subpoena documents and/or seek to depose the referral service
employee in an attempt to discover information related to their
case. The absence of this statutory privilege may hamper the
communication between prospective clients and lawyer referral
services, which makes it difficult for referral service
employees to gather the information necessary to make a referral
to the appropriate lawyer."
Thus, in creating an LRS-client privilege, this bill seeks to
provide assurance to persons who utilize an LRS that information
provided to the employee to obtain a proper referral or other
services, shall be maintained as confidential and inadmissible
as evidence, except as otherwise provided.
3. The policy goals of a privilege must be sufficiently
important to outweigh the public's right to evidence
This bill seeks to codify a new statutory privilege for those
confidential communications between an LRS and a person seeking
referral to a lawyer. As a general matter, privileges function
to exclude evidence, no matter how relevant or reliable that
evidence might be, in order to promote some other extrinsic
policy. Because they tend to suppress otherwise relevant
evidence, the statutory privileges are strictly construed and in
California, unlike under federal law, the courts are not free to
create new privileges as a matter of judicial policy; they may
only apply those privileges created by statute or those that
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arise out of state or federal constitutional law. (Evid. Code
Sec. 911; Sullivan v. Superior Court (Spingola) 29 Cal.App.3rd
64 (1972).)
As noted in the Background, privileges are policy-based
exclusions that are granted because it is considered more
important to keep that information confidential than it is to
require disclosure of all the information relevant to the issues
in a pending proceeding. Thus, the central consideration is
whether or not the policy promoted by the privilege outweighs
the public's right to truth in evidence.
a. Ensuring confidentiality of information shared with an
LRS
This bill seeks to protect the confidentiality of certain
communications made when a person consults an LRS for referral
to an attorney (or other appropriate services) for his or her
problems. While the public does have a right to all evidence,
in codifying a lawyer client privilege, this Legislature has
previously judged that the importance of ensuring people
obtain effective legal aid to protect their legal rights may
outweigh that interest. Similarly, lawyer referral services
can function as an integral part of obtaining appropriate
legal services for some consumers. (See Comment 2.)
Though it is unclear whether lawyer referral services are
currently underused or rendered ineffective due to persons not
feeling free to communicate openly with lawyer referral
services, or whether these services have been subject to
discovery requests, the proponents of this bill maintain that
the gap in existing law with respect to these services has a
chilling effect on communications between an LRS and clients
and ought to be addressed. The Conference of California Bar
Associations (CCBA), sponsor of this bill, explains that:
Under current California law, a prospective client who
consults a lawyer has the freedom to be completely candid,
because everything he or she reveals to the lawyer with the
intention it be kept confidential is privileged; it cannot
be revealed by the attorney-even to a court-without the
client's authorization, and it cannot be discovered in
litigation. But the prospective client does not have the
same freedom to candidly discuss his or her problem with a
lawyer referral service in an effort to obtain a lawyer,
because there is no specific statutory privilege for
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information provided by a prospective client to a LRS
employee. The confidentiality of the information may be
protected under various interpretations of the
attorney-client privilege statutes[, b]ut no one currently
knows for sure, and this uncertainty and risk has had a
chilling effect on communications between prospective
clients and lawyer referral services. (Emphasis in
original, footnote omitted.)
As acknowledged in the CCBA's letter, a communication made
between a client and an LRS employee could potentially be
protected under the umbrella of the existing attorney-client
privilege, as the employee may be a person "to whom disclosure
is reasonably necessary for the accomplishment of the purpose
for which the lawyer is consulted." (Evid. Code Sec. 952; see
also, Evid. Code Sec. 912(d).) However, because it is unclear
if courts would agree with that argument if presented with the
issue, the uncertainty could feasibly cause some parties to
hesitate to use these services, and potentially result in some
parties not receiving the legal assistance of an attorney when
needed.
Therefore, to the extent that existing statutory and case law
is silent on this specific issue, a limited privilege is
arguably appropriate to assure the public of the
confidentiality of these services and to encourage them to
obtain necessary legal assistance. Pursuant to this bill,
the client, as the holder of the privilege, could claim the
privilege to refuse disclosure or prevent any other person
from disclosing those confidential communications. The LRS
would also be authorized to claim the privilege and would be
required to do unless otherwise permitted by the client.
b. This bill largely models the existing lawyer-client
privilege and its limits
It should be noted that evidentiary privileges have been
carefully limited to balance the need for confidentiality with
the fundamental right of the public to evidence. To this end,
existing law outlines both situations in which no privilege
applies at all, and circumstances in which an otherwise valid
claim of privilege will be deemed waived. Additionally,
certain other elements, such as the definitions provided for
"the holder of the privilege" and for "confidential
communication," serve as inherent limits on a privilege as
well. As a result, not just anyone is authorized to claim or
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waive the privilege, and not all communications are considered
confidential. In establishing an LRS-client privilege, this
bill largely models the lawyer client privilege, including
limits to that privilege.
For example, under existing law, there is no lawyer-client
privilege where either the services of the lawyer were sought
or obtained to enable or aid anyone to commit or plan to
commit a crime or a fraud, or the lawyer reasonably believes
that disclosure of any confidential communication relating to
representation of a client is necessary to prevent a criminal
act that the lawyer reasonably believes is likely to result in
the death of, or substantial bodily harm to, an individual.
This bill would apply those same exceptions for the proposed
LRS-client privilege.
Similarly, the term "confidential communication between client
and lawyer" is defined under existing law as the information
transmitted between a client and his or her lawyer in the
course of that relationship and in confidence by a means that,
so far as the client is aware, does not disclose the
information to third persons other than those who are present
to further the interest of the client in the consultation or
those to whom disclosure is reasonably necessary for the
transmission of the information or the accomplishment of the
purpose for which the lawyer is consulted. In other words,
communications made in an open elevator full of third parties
would not be privileged, nor would communications that are
irrelevant to the purpose for which the lawyer is consulted.
This bill would similarly track that definition, among others,
thereby ensuring that the proposed privilege would also
operate in a limited fashion.
4. Chaptering-out issues
Staff notes that AB 729 (Hernandez), relating to evidentiary
privileges, would amend a section amended by this bill and
language must be added to the bill before it leaves the Senate
to avoid any chaptering-out of this bill's provisions.
Support : Alameda County Bar Association; Bar Association of San
Francisco; California Advocates for Nursing Home Reform; Legal
Aid Association of California
Opposition : None Known
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HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : AB 729 (Hernandez, 2013) would
establish a union agent-represented worker privilege. This bill
passed the Assembly Floor by a vote of 52-22.
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 56, Noes 20)
Assembly Judiciary Committee (Ayes 8, Noes 1)
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