BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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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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