| A proposed new ethics rule permitting attorneys to reveal confidential
information if they believe a client may commit an act of violence was rejected last month
by the Supreme Court. The action marks the third time in 10 years that a proposal to
resolve this ethical dilemma, most often faced by family law practitioners, has been
turned back.
The court denied the request for a new rule without comment.
Opponents of the proposal believe it strikes at the heart of the critical duty of
client confidentiality, while supporters argue that it would permit lawyers to make a
choice of conscience without violating their professional obligations.
Ethics dilemma
The proposal also was designed to resolve an apparent conflict between 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.
The State Bar's ethics hotline, before it was disbanded in June, received an inquiry
about the ethical dilemma about once a week.
The proposed rule, 3-100 of the California Rules of Professional Conduct, would have
permitted, but not required, 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."
It was sent to the court by the State Bar, after recommendation by ethics experts who
serve on the bar's Committee on Professional Respon-sibility and Competence (COPRAC).
Not surprising
Mark Tuft, a former chairman of COPRAC and an opponent of the proposal, said he was not
surprised that the court rejected the rule, given widespread concern and the questionable
need for such a rule.
The proposed rule essentially followed the wording of the evidence code, Tuft said.
"I think the language is sort of ambiguous, so I didn't think a rule adopting that
language was in the best interest of the bar," he said.
But Harry Sondheim, the new COPRAC chairman, said the court's action "doesn't
really solve the problem of the possible conflict between 6068(e) and the evidence
code."
Ellen Peck, chair of the Los Angeles County Bar Association's ethics committee, said
the conflict between two statutes "leaves all lawyers in a quandary. They don't have
a clear policy direction from the legislature about their professional responsibility in
that setting."
Legislative involvement?
Peck suggested attorneys may have to go to the legislature for a clarification.
Tuft doesn't see such a big problem. No lawyer, he said, has been or will be
disciplined in California or elsewhere for "exercising independent professional
judgment in the kinds of situations addressed by the proposed rule."
The rule divided lawyer groups; besides COPRAC, the Los Angeles County Bar Association
and the California District Attorneys Association favored the proposal, but it drew
opposition from the San Fran-cisco and San Diego bar associations as well as individual
attorneys.
The bar has tried to resolve the issue ever since the American Bar Association in 1983
adopted rule 1.6, which states a lawyer "may" reveal confidences if he or she
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 in 1993.
More worrisome study
Tuft is more concerned about consideration being given by the ABA to "significant
inroads into the duty of confidentiality" far beyond anything addressed so far in
California, in-cluding permission to report client fraud.
Its so-called "ethics 2000" commission is expected to make a series of
proposals to the ABA House of Delegates in the year 2000 which Tuft believes should be of
serious concern to attorneys.
COPRAC and local bar associations have created a statewide committee to analyze and
respond to the ABA's recommendations. |
