| Clients have a fundamental right to expect that their lawyers will keep
their confidences and secrets. This expectation has been soundly affirmed by the judiciary
during the past few months. The lawyer's duty to maintain, protect and safeguard client
information is almost absolute. In California, it is articulated in Business &
Professions Code §6068(e): "It is the duty of an attorney . . . to maintain
inviolate the confidence, and at every peril to himself or herself to preserve the
secrets, of his or her client."
 This may be the
pre-eminent duty owed by lawyers to their clients and clearly survives the client's death.
Therefore, Whitewater prosecutor Kenneth Starr's attempt to view the notes of the last
meeting Vince Foster had with his attorney was soundly denied by the U.S. Supreme Court in
Swidler & Berlin v. U.S. 92-1192.
A commonly recognized exception to that duty (which can also engender an evidentiary
privilege) is the crime-fraud exception. In a crime-fraud scenario, a communication is not
entitled to confidentiality because the client misused or abused the attorney-client
relationship by virtue of illegal conduct.
The privilege accorded communications between the attorney and the client under the
Evidence Code is not as broad as the lawyer's duty of confidences and secrets; the
privilege is the "only aspect of the duty of confidentiality." Restatement of
the Law of Lawyering, Proposed Final Draft 1, page 265.
Additionally, this privilege is much more limited than the duty of confidentiality,
which covers all information regarding the representation of the client (oral,
documentary, electronic, visual and originated by the client or others).
Virtually every jurisdiction except California permits or requires disclosure where the
attorney learns that the client intends to commit an act involving serious bodily harm.
On Sept. 2, the California Supreme Court, after numerous requests over the last decade
from the State Bar, again refused to permit a change in the Rules of Professional Conduct
(or proposed rule 3-100, designed to create an exception to this duty where the client has
threatened serious bodily harm (see story on page 4). The court responded with a terse
one-liner which read, "Request denied."
Possibly our court believes that encouraging full client disclosure is more important,
where the client is at liberty to discuss anything, absent fear of subsequent disclosure
or betrayal by the lawyer. This gives the lawyer the opportunity to persuade/dissuade the
client, an opportunity that could be lost if the client feared being turned into the
authorities.
The Supreme Court's denial may reflect the court's justifiable confidence in the
lawyers of this state and their common sense approach to these issues.
 Diane
Karpman of Los Angeles represents attorneys at the State Bar and is an expert witness in
legal malpractice, conflicts of interest and partnership dissolutions.
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