Ethics update

By Jonathan Bishop

This section highlights recent developments in attorney professional responsibility, including new cases, advisory ethics opinions, pending legislation and proposed rule amendments.

Legislation

Assembly Bill No. 1101 (Steinberg)

On Oct. 10, Gov. Davis signed AB 1101, a bill amending the statutory duty of lawyer confidentiality to permit, but not require, a lawyer to disclose confidential information reasonably necessary to prevent a crime of great bodily injury or death.

In an uncodified section, the bill also directs the State Bar to form an advisory committee to develop an amendment to the Rules of Professional Conduct addressing ethical issues raised by a lawyer's exercise of this permissive disclosure.

Questions to be addressed by the anticipated rule amendment include whether a lawyer must tell a client about the exception and whether a conflict of interest arises once a lawyer discloses information under the law and, if so, how such conflicts can be addressed. The new confidentiality exception takes effect July 1, 2004.

Rule amendments

Amendments to the ABA Model Rules of Professional Conduct

In response to recommendations by the ABA Task Force on Corporate Responsibility, the ABA House of Delegates voted to amend ABA Model Rules 1.6 and 1.13 to enhance lawyer conduct in protecting investors and the public.

Model Rule 1.6 was amended to permit a lawyer to reveal information relating to the representation of a client to the extent the lawyer believes necessary to prevent the client from committing a crime or fraud that would lead to "substantial injury to the financial interests or property of another." In addition, as amended, the rule permits a lawyer who learns of a crime or fraud after the fact, to disclose information necessary to enable the affected persons to mitigate or prevent losses.

The ABA also amended ABA Model Rule 1.13 to require lawyers representing organizational clients to report law violations by officers or employees up the ladder to higher authorities in the organization in certain circumstances.

As amended, the rule also permits, but does not require, lawyers to reveal confidential client information outside the organization if internal reporting is insufficient to protect the client organization from substantial harm.

This amended rule also includes language clarifying that: (1) permissive reporting outside the organization does not apply when a lawyer has been engaged to investigate an alleged violation of law or to defend an organization or corporate officer accused of violating the law; and (2) a lawyer who reasonably believes he or she has been discharged by a client for whistleblowing permitted by the rule, or who withdraws in circumstances allowing such whistleblowing, is allowed to proceed as the lawyer reasonably believes necessary to assure that the organization's highest authority is informed of the lawyer's discharge or withdrawal.

Although not binding in California, the ABA Model Rules serve as guidance where the California Rules of Professional Conduct are silent (see Cal. Rule Professional Conduct 1-100(A)).