Proposed rule may permit
breach of confidentiality

Effort to resolve dilemma when attorney learns about
potential act of violence

by Nancy McCarthy
Staff Writer

For the third time in 10 years, the State Bar may ask the California Supreme Court to adopt a new rule allowing attorneys to reveal confidential information if they believe a client may commit an act of violence.

Opponents believe the controversial proposal strikes at the very heart of the critical duty of client confidentiality, while backers of the rule say it will permit lawyers to make a choice of conscience without violating their professional ethical obligations and will resolve a conflict between two laws.

The dilemma of what to do when a client tells his lawyer he plans to kill or harm someone arises about once a week, says Randall Difuntorum, staff attorney for the bar's Ethics Hotline. The caller usually is a family law practitioner.

A difficult decision

Difuntorum cites Business & Professions Code §6068(e), which requires lawyers to "maintain inviolate" client confidences, and Evidence Code §956.5, which provides an exception when a lawyer believes a client will commit a criminal act that will cause death or great bodily harm. "They have to decide for themselves how to resolve what some people view as a conflict of law," says Difuntorum.

"Lawyers in this position are between a rock and a hard place," says Ellen Peck, a former State Bar Court judge and ethics expert who now practices in Malibu. "They don't know what to do. This is one dilemma in which there is no guidance."

The new proposal, rule 3-100 of the California Rules of Professional Conduct, would permit, but not require, a lawyer to "reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent the client from committing a criminal act that the member believes is likely to result in death or substantial bodily harm."

Two avenues

The rule does two things, says Los Angeles attorney Stan Lamport, chair of the bar's ethical rules body, the Committee on Professional Responsibility and Conduct (COPRAC). It allows an attorney, without being subject to discipline, to take steps to prevent a crime from occurring, and it codifies what has long been recognized in B&P §6068(e) as the definition of confidential information.

It also is meant to harmonize the conflict between B&P §6068(e) and the evidentiary exception in 956.5, but the hotly contested proposal has created disharmony in the ranks of ethics experts.

"This is a matter of personal conscience and reasonable minds can differ," says Lamport. "Each side should be allowed to follow their heart and conscience without the bar coming in and saying we're going to discipline you."

Opponents feel that any breach in the ethical duty of confidentiality impedes candor and can destroy trust between lawyer and client. The possibility of disclosure might discourage clients from giving their attorneys the information necessary for proper representation. In addition, if a client does not confide to an attorney the potential for violence, the attorney may not have the opportunity to talk him out of it, opponents argue.

Creating confusion

San Francisco attorney and former COPRAC chair Mark Tuft thinks the proposed rule actually creates confusion because it talks in terms of confidential information, whereas 6068(e) talks in terms of maintaining client confidence and protection of client secrets. "I think it seriously undermines the attorney-client relationship and the benefits that are intended to be derived from that relationship," he says.

Further, he adds, there is no limitation on the kinds of criminal acts that could lead to death or serious harm. For example, attorneys who represent clients in environmental or product liability cases could be forced to become whisteblowers "and that's not what's intended."

On the other hand, backers of the proposed rule, particularly the Los Angeles County Bar Association, believe it provides a balance between preserving client confidentiality and "consequences to others that are so serious that they outweigh the interests of confidentiality."

The rule does not require an attorney to reveal a potential criminal act, but makes such a decision discretionary. If the lawyer does reveal such information, he or she will not be disciplined as long as the belief was reasonable.

For Ellen Peck, the rule offers a reasonable compromise. "We think public policy really says in the instance where life and death are at stake, life is more important than a confidential communication," she says.

Noting that violence in family law cases has increased in recent years, she laments that attorneys "still don't know what their ethical or civil obligations are. I think lawyers are in an untenable position."

Civil liability

The question of civil liability for an attorney who reveals confidential information also divides ethics experts. "It's an open question in California as to what liability is in the event you do something to protect the life of another person as a result of what your client tells you," Lamport explains.

One view is that the Tarasoff case, especially with the adoption of the evidentiary exemption in 956.5, imposes liability already. (In Tarasoff v. Regents of the University of California, the Supreme Court ruled that a psychiatrist who knew of a patient's threat to kill a young woman had a duty to disclose the information.) Others believe 6068(e) "trumps that," says Lamport. "Nobody knows the answer," he says. "We want to at least clarify the ethical issue without doing anything one way or another on the liability issue. That's why the rule says a member 'may but is not required to' disclose."

Effort since 1983

The bar has tried to resolve this issue ever since the American Bar Association in 1983 adopted rule 1.6, which states a lawyer "may" reveal confidences if he reasonably believes it is necessary to prevent the client from committing a criminal act that will result in death or substantial bodily harm.

The bar has twice submitted proposed new rules to the Supreme Court. It withdrew the first in 1987 in the face of court questions, and the second was rejected without comment by the court in 1993.

However, the enactment in 1994 of §956.5 created an apparent conflict, giving some urgency to COPRAC's effort to devise a new rule. COPRAC will present the new rule to the board discipline committee in July.