New ethics rule clarifies confidentiality exception

By Nancy McCarthy
Staff Writer

California became the last state in the country last month to modify its duty of attorney-client confidentiality with a new rule that permits lawyers to disclose potential criminal acts by a client that may cause bodily harm or death.

Rule 3-100 of the Rules of Professional Conduct, which took effect July 1, gives attorneys the discretion to act on such information without risking a violation of professional ethics. The new rule was required under AB1101, legislation that amended the statutory duty and took effect the same day.

While it eases confusion among lawyers bound by conflicting statutes and rules, the change is also viewed among purists in the profession as an erosion of lawyers’ core values.

“Concerned lawyers feel that this ultimately is about the role of the lawyer in our justice system,” said Robert Hawley, deputy executive director of the State Bar and a longtime observer of professional ethics. “Are we to be enforcers of the law using client confidences to leverage good conduct, or do we serve as the trusted confidant of a client in trouble, the last stop between the innocent and the gallows? The attorney’s duty of confidentiality is the one thing that innocent people, when they’re in trouble, really rely on. It is necessary to assure that the innocent and guilty are fairly represented in our system.”

Across the country, most states rely on ABA model rule 1.6, which provides an exception that allows a lawyer to disclose confidential information to prevent any action that may result in death or substantial bodily injury. Prior to 2003, when the rule was amended, the act had to be a criminal act and it had to be imminent. Those parameters were amended to include any action that may result in death or substantial bodily harm, and the action had to be reasonably certain.

California was unique because it does not have a rule of professional conduct that directly addresses confidentiality. Instead, the duty of confidentiality, which prohibits attorneys from disclosing any confidential information, is defined by Business & Professions Code §6068(e). The attorney-client privilege and the exception to it are found in the Evidence Code, which permitted a lawyer to reveal confidential information if it is necessary to prevent a crime that will result in death or bodily harm. 

Although the circumstances covered by the exception occur infrequently, the inconsistency between the evidentiary privilege and the ethical duty of confidentiality was troublesome. The evidentiary standard now parallels the ethical duty of confidentiality.

And the change was necessary, says San Francisco ethics expert Richard Zitrin, “so we don’t have a rule that states that a lawyer has to choose confidentiality over human life. We are simply saying that when a human life is at stake, that has to trump the strongest type of ethical rule.”

Zitrin, who strongly supports the notion of attorney-client confidentiality and describes the new rule as a very narrow exception, points out that ethics is based on social morality. “If we have a rule that requires a lawyer to let someone die because a rule prevents him from doing anything, we have destroyed the core meaning of ethics.”

But Jerry Sapiro, another San Francisco attorney who specializes in professional responsibility, believes the new rule is self-defeating. If its purpose is to encourage attorneys to talk a client out of conduct that might harm someone, one of two things will happen, Sapiro said. “In my opinion, either the client isn’t going to disclose the information so the purpose of the legislation will be defeated, or the client will be trapped into disclosing things he finds out in hindsight will be disclosed to others.

“If anything is going to erode the confidence clients feel in lawyers, it’ll be the ability to be entrapped.”

An attorney typically might learn about potential criminal acts that could cause death or bodily harm in criminal law, family law or other emotion-laden practices, and in instances of institutional crime, such as a mass toxic waste situation. While attorneys in the first two kinds of practices are likely to be familiar with the confidentiality exception, in-house counsel for corporations also may be affected by it.

In any case, the rule encourages the lawyer to try to dissuade the client from committing the crime or to take some action to somehow prevent the injury. The rule affects only future crimes.

In addition to concerns about the rule eroding a lawyer’s duty to clients, some ethics experts worry that at a time when American security is threatened, people are more inclined to relinquish protections necessary to the equitable administration of justice. For example, the ABA Ethics 2000 commission recommended adding economic fraud as an exception to attorney-client confidentiality. California led the charge in 2002 to defeat the change, but in the wake of Enron and other corporate scandals, the new exception was adopted last year.

Zitrin believes there is no serious discussion of such a change among ethics gurus in California, but Sapiro is not so certain. “If this trend continues,” he says, “it will inhibit people from getting competent advice because instead of getting the confidentiality they’re entitled to, they will be treated as if lawyers were auditors whose duties are to report to the government or to other people if their clients propose to act improperly.”

If any future debate moves at the same speed as it has in the past, any resolution will take years. The State Bar first proposed a confidentiality rule with a death and bodily harm exception in 1987. AB 1101, with its call for coordination with the Supreme Court on a corresponding rule, forced quick action resulting in new Rule 3-100.

Full text of the rule can be found on the California Courts Web site.