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Bar opposes whistleblower bill

By Nancy McCarthy
Staff Writer

Concerned about erosion of the attorney-client privilege, the State Bar Board of Governors voted last month to oppose legislation that would grant an exception to the duty of confidentiality for government lawyer-whistleblowers. By a 12-5 vote, the board agreed instead to send the issue to its rules revision commission, which has undertaken the task of rewriting and simplifying the bar’s professional conduct rules, including those that address confidentiality.

“Attorney-client confidentiality is being attacked and eroded as we speak in Washington and at the ABA,” said San Francisco Governor Jim Penrod, who called confidentiality “a fundamental principle of our American system of justice.”

Introduced by Assemblywoman Fran Pavley, D-Agoura Hills, the bill is similar to measures that were vetoed by Govs. Davis and Schwarzenegger and to proposed amendments to a Rule of Professional Conduct that were rejected by the Supreme Court. The Pavley bill is before the Senate Judiciary Committee.

The effort to grant protections to government lawyers stems from the case of Cindy Ossias, a Department of Insurance attorney who was suspended from her job after reporting misconduct by Commissioner Chuck Quackenbush in 2000. The State Bar investigated Ossias after receiving a complaint that she breached client confidentiality, but the bar found she had not violated any professional conduct rules.

Pavley appeared before a bar committee last month and said her measure, which is supported by the League of California Cities, “walks a fine line between attorney-client privilege and public protection.” She said government lawyers deserve the same protection as whistleblowers and currently “are caught between a rock and a hard place.”

San Diego City Attorney Mike Aguirre asked the board to support Pavley’s bill, and suggested San Diego’s current financial woes, following the conviction of city officials on federal corruption charges, might have been averted if such a measure had been enacted. “Our city is in a catastrophic state,” Aguirre said. “All of this could have been avoided had this legislation been in place.”

Robert Hawley, deputy executive director of the State Bar, said the staff recommended the bill be opposed and explained that similar efforts at reform have been rejected since 2001. The bar worked with proponents of legislation to develop amendments to a rule of professional conduct, but they were rejected by the Supreme Court. The bar was neutral on two subsequent measures to create similar protections for government lawyers.

Hawley urged opposition to the Pavley bill because of recent developments that have placed the principle of confidentiality “under siege”:

  • In 2003, the ABA created an exception to confidentiality in its Model Rules of Professional Conduct for potential financial injury to others.
  • The federal Sarbanes-Oxley legislation allows lawyers for publicly traded corporations to report client misconduct to the SEC.
  • The U.S. Sentencing Commission is proposing guidelines that allow prosecutors to leverage waivers of attorney-client confidentiality with reductions in potential sentencing in serious criminal cases.

Hawley said California has a long history of protecting the sanctity of attorney-client confidentiality and reminded the board that it took 15 years to adopt a “death and imminent bodily harm” exception to confidentiality just 18 months ago. He said the bar has referred other requests for confidentiality exceptions, including a legislative proposal to free attorneys representing incapacitated clients from the strict rigors of confidentiality, to its Commission on the Revision of the Rules of Professional Conduct for consideration.

“California is the champion of confidentiality,” Hawley said. “A lawyer is a lawyer is a lawyer. Granting an exception to public lawyers is wrong.”

Although some board members said they support the concept of an exception for public lawyers and are willing to explore it further, they generally agreed the bill is too broad. It offers statutory immunity to public lawyers even if they are mistaken in reporting their public official clients to enforcement authorities, regardless of the damage done.

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