Two rules would alter legal duties

by RANDALL DIFUNTORUM


Two amendments which would alter the duties of attorneys in the handling of conflicts of interest and client confidential information are circulating for public comment.

The proposals, recommended by the State Bar's Board Committee on Admissions & Competence, would make additions to the California Rules of Professional Conduct if approved by the Supreme Court.

The first proposed amendment adds a new subparagraph to rule 3-310 (avoiding the representation of adverse interests). New subparagraph (C)(4) would prohibit an attorney from representing a current client in a matter and at the same time in a separate matter accepting representation of a client whose interest in the separate matter is adverse to the interests of the current client, unless the attorney obtains the informed written consent of each client.

Proposed new discussion section language would clarify that this prohibition is intended to apply whether or not the current and separate matters are related.

The new discussion would also provide that the prohibition extends to the attorney's own current representation of a client and to the situation where the attorney knows or reasonably should know that the attorney's law firm currently represents such a client.

This proposal was developed by the bar's Committee on Professional Responsibility and Conduct (COPRAC) and builds upon an earlier proposal forwarded by the bar's Commission for the Revision of the Rules of Professional Conduct in 1991.

COPRAC's rule study also involved careful consideration of the present state of the law with a focus on an attorney's fundamental duty of loyalty.

The second proposed amendment adds new rule 3-100 (confidential information relating to certain criminal acts). Proposed new rule 3-100 would provide that an attorney shall not be subject to discipline for revealing confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent the client from committing a criminal act that the attorney believes is likely to result in death or substantial bodily harm.

In addition, the proposed new rule would set forth a definition of "confidential information" for purposes of the rule.

The goal of proposed new rule 3-100 is to clarify and harmonize a member's absolute duty of confidentiality under Business & Professions Code 6068 (e) with recently enacted Evidence Code 956.5, which creates an exception to the attorney-client privilege where a lawyer reasonably believes that disclosure of any confidential communication relating to the representation of a client is necessary to prevent death or great bodily harm.

Although the State Bar twice previously recommended such an exception, in both instances the California Supreme Court declined to give its approval.

The Los Angeles County Bar Association, the author of the current proposal, believes that the result may be different this time because the previous attempts were not supported by an existing evidentiary exception which is the case today under 956.5.

Attorneys and all interested persons are encouraged to send comments on both proposals to Eloise Chitmon, Office of Professional Competence, Planning & Development, State Bar of California, 100 Van Ness Ave., 28th Flr., San Francisco 94102-5238.

The deadline for comment on the proposed amendment to rule 3-310 is 5 p.m. July 29. The deadline for comment on proposed new rule 3-100 is 5 p.m. Sept. 9.


Randall Difuntorum is a staff attorney for the State Bar's Office of Professional Competence, Planning & Development.

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