BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 267| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 267 Author: Chau (D) Amended: 4/9/13 in Assembly Vote: 27 SENATE JUDICIARY COMMITTEE : 6-0, 6/4/13 AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning NO VOTE RECORDED: Walters ASSEMBLY FLOOR : 56-20, 4/18/13 - See last page for vote SUBJECT : Evidentiary privileges: lawyer referral service-client privilege SOURCE : Conference of California Bar Associations DIGEST : This bill provides that a person who consults a lawyer referral service, as defined, for the purpose of retaining a lawyer or securing legal advice has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and the lawyer referral service if the privilege is claimed by a specified person or entity. This bill also establishes the circumstances in which the privilege does not apply, and provides that the lawyer referral service-client privilege may be waived in accordance with existing law. ANALYSIS : Existing law: CONTINUED AB 267 Page 2 1. 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: A. 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. B. 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. C. 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. 2. Provides that an attorney has the duty to maintain inviolate the confidence, and at every peril to himself/herself to preserve the secrets, of his/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. 3. 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. 4. Provides for a lawyer-client privilege, and provides that no privilege applies: A. If 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. CONTINUED AB 267 Page 3 B. 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. C. 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. D. As to specified communications that are relevant to issues in certain probate matters. E. In specified circumstances where two or more clients have retained or consulted a lawyer upon a matter of common interest. 5. 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 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. 6. Defines "confidential communication between client and lawyer" as information transmitted between a client and his/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. 7. 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. CONTINUED AB 267 Page 4 8. 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: A. The holder of the privilege. B. A person authorized to claim the privilege by the holder of the privilege. C. 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. 8. 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. 10.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. This bill: 1. Codifies a lawyer referral service (LRS)-client privilege, and would provide that no privilege applies: A. 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. B. 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. CONTINUED AB 267 Page 5 2. Defines "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/her professional capacity, and includes an incompetent who consults the LRS himself/herself or whose guardian or conservator consults the LRS on his/her behalf. 3. Defines "lawyer referral service" as an LRS certified under, and operating in compliance with, Business and Professions Code Section 6155, or an enterprise reasonably believed by the client to be an LRS certified under, and operating in compliance with, that section. 4. Applies these and other related provisions to the LRS-client privilege. 5. Defines "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. 6. Defines "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. 7. Provides 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: A. The holder of the privilege. B. A person authorized to claim the privilege by the holder of the privilege. C. 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 CONTINUED AB 267 Page 6 instructed by a person authorized to permit disclosure. 8. Provides 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. 9. Provides that an LRS that has received or made 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. 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. 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 only privileges that are recognized in California are those statutory privileges expressly codified in the Evidence Code. 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. CONTINUED AB 267 Page 7 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 LRSs, which are specified entities that assist people find a lawyer experienced in the area in which they are having legal problems. As such, LRSs 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 LRS 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 LRS 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." Though ABA model rules are designed to provide guidance to states, California has not expressly addressed the confidentiality of communications made to a LRS. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 6/4/13) Conference of California Bar Associations (source) Alameda County Bar Association Bar Association of San Francisco California Advocates for Nursing Home Reform Legal Aid Association of California Los Angeles County Bar Association ARGUMENTS IN SUPPORT : According to the author's office, this bill creates a statutory privilege for communications between a prospective client and a 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 this CONTINUED AB 267 Page 8 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 LRSs 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. This bill helps facilitate honest and open communications between prospective clients and LRSs and make clear that those communications are privileged. This, in turn, makes it possible for the LRSs 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. ASSEMBLY FLOOR : 56-20, 4/18/13 AYES: Achadjian, Alejo, Ammiano, Atkins, Bloom, Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian Calderon, Campos, Chau, Chesbro, Cooley, Daly, Dickinson, Eggman, Fong, Fox, Frazier, Garcia, Gatto, Gomez, Gordon, Gray, Hall, Roger Hernández, Jones-Sawyer, Levine, Logue, Mansoor, Medina, Mitchell, Mullin, Muratsuchi, Nazarian, Pan, Perea, V. Manuel Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone, Ting, Torres, Waldron, Weber, Wieckowski, Williams, Yamada, John A. Pérez NOES: Allen, Bigelow, Chávez, Conway, Dahle, Donnelly, Beth Gaines, Grove, Hagman, Harkey, Jones, Linder, Maienschein, Melendez, Morrell, Nestande, Olsen, Patterson, Wagner, Wilk NO VOTE RECORDED: Gorell, Holden, Lowenthal, Vacancy AL:d 6/5/13 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED AB 267 Page 9 CONTINUED