AB 1101: An Attorney’s Dilemma—To Tell or Not to Tell
LACBA Update, October 2003

By Louisa Lau, member, LACBA Professional Responsibility & Ethics Committee. Lau practices civil litigation and is a senior staff counsel with State Compensation Insurance Fund. She is also a member of the California State Bar Committee on Professional Responsibility and Conduct. The opinions expressed are her own.

It is well established that the "relation between attorney and client is a fiduciary relation of the very highest character, and binds the attorney to most conscientious fidelity . . . [T]he fiduciary relationship requires that the attorney respect his or her client’s confidences. . . It also means that the attorney has a duty of loyalty to his or her clients. . . A client is simply not required to forfeit the right to control the disclosure of its confidential information to the unfettered determination of its attorney. . . ." American Airlines, Inc. v. SMRH (2002) 96 CA 4th 1017, 1040-1044

"The attorney-client privilege serves a different purpose, however. It exists to permit a client to freely and frankly reveal confidential information, including past criminal conduct, to the attorney . . . and to thereby enable the attorney to adequately represent the client." People v. Clark (1990) 50 Cal.3d 583. "In a criminal case the privilege also serves to preserve the defendant’s privilege against self-incrimination that might otherwise be deemed to have been waived by his revelation of incriminating information. To make adequate representation possible, therefore, these privileges assure criminal defendants that confidential statements to their attorney will not be admissible in any proceeding." Id. at 621

However, an attorney’s duty of confidentiality and loyalty may be substantially altered, and the client’s due process rights may be impaired under proposed AB 1101 (amending B&P Code Sec. 6068(e)(2)), which will provide that "an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual."

AB 1101 lacks a bright line standard for attorneys to conduct themselves in the area of preserving a client’s confidence or secrets. It would be difficult for attorneys to comply with the duty imposed by 6068(e)(1), "To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client," while at the same time revealing a client’s confidential information. Should an attorney admonish the client with a "Miranda" warning before consultation commences? Unfortunately, the law requires that "If a lawyer could not promise to maintain the confidentiality of his client’s secrets, the only advice he or she could provide would be, 'Don’t talk to me.'" Titmas v. Sup. Ct. (2001) 87 CA 4th 738, 744. Without the privilege, the client would not freely speak, thereby limiting the attorney’s ability to provide sound advice persuading the client not to commit the act. Clients are unlikely to reveal all confidences knowing the attorney has the power to reveal. Thus, it will not serve the very noble purpose of saving lives or preventing significant bodily harm that AB1101 intends to accomplish.

Additionally, AB 1101 will create other potential issues such as attorneys testifying more client’s confidences to justify their reasonable beliefs; prosecutors calling attorneys as witnesses to testify against their own clients in new charges for attempted crimes; third parties calling attorneys as witnesses to support third-party civil suits for damages against the clients; and/or potential liability if the attorneys’ beliefs were wrong or the clients’ conduct did not materialize. It is also uncertain to whom the attorney should report if the attorney does form a reasonable belief. Notably, AB 1101 applies to all legal representation and is not limited to criminal defense. An attorney will face the dilemma and have to reason whether to tell or not to tell on the client every time an emotionally charged client expresses any threat to one’s own or others’ safety. This type of dilemma will only encourage defensive representation practices by the attorney for fear of exposure to liability. Or the costs for malpractice and liability insurance for attorneys will increase so much that legal representation will become even more unaffordable to average persons.

Finally, the law requires that "when there is a prima facie claim of attorney-client privilege, the trial judge must accord a full hearing, with oral argument, before ordering the revelation of client confidences to the other side and, in effect, compelling the attorney testimony against a client." Id. at 740. "[O]nce privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure." Id. at 744. Nevertheless, AB 1101 does not provide such protective measure as it delegates to the "reasonable belief" of the attorney.

Ultimately, AB 1101 will fundamentally change the attorney-client relationship from one of advocacy and counseling to adversary and whistle blowing, and alter the relevant established law.