BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 267|
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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:
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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.
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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.
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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.
9. 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.
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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
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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.
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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
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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
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