The Lawyer's Duty Redefined: In a Time of Perceived Crisis, to Whom Does the Lawyer Owe a Duty?
LACBA Update, February 2004

By John W. Amberg, partner, Bryan Cave LLP, Santa Monica. Amberg is a member of LACBA’s Professional Responsibility & Ethics Committee, and of the State Bar Committee on Professional Responsibility and Conduct. The opinions expressed are his own.

The country was lawless. On the orders of the president, the U.S. Army had invaded and deposed the ruling elite. The existing body of laws was scrapped, and the country languished without a new constitution. Foreigners flooded into the country, many attracted by its vast mineral wealth. Crime and violence were rampant. Corrupted by gifts and payments, legislators granted exclusive public contracts to corporations controlled by men who enriched themselves at the expense of their bondholders.

Iraq? The United States in the Enron-WorldCom-Tyco era? No, this was California in the wild years of the mid-19th century. From the American seizure of Alta California from Mexico, through the Gold Rush that brought hundreds of thousands of fortune hunters to the state, and on through the creation of the Central Pacific Railroad monopoly and the robber barons, California struggled to establish law and order in a rapacious new society. Between 1846 and 1872, justice was rough and raw, enforced by guns in the mining camps and vigilantes on the streets of San Francisco. Finally, in 1872, legal codes largely drafted by Stephen J. Field, a U.S. Supreme Court justice and former chief justice of the California Supreme Court, were enacted.

One of the remarkable provisions of the 1872 Code of Civil Procedure was Section 282, which defined the duties of an attorney. Borrowed from the New York Code of Civil Procedure, the section read in part:  “It is the duty of an attorney and counselor - . . . 5. To maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client.” If the language sounds familiar, that is because the section remains virtually unchanged in Section 6068 of our modern Business and Professions Code:  “It is the duty of an attorney to do all of the following: . . . (e) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her clients.” In a time of perceived crisis in the 19th century, when California desperately needed strong enforcement of the law, the state nevertheless recognized the vital role played by attorneys whose duty was owed exclusively to their clients. The duty of confidentiality enacted into law in 1872 reflected a recognition that the legal system is stronger if citizens can obtain confidential advice from a lawyer whose loyalty is not compromised. That duty has stood the test of time for 132 years.

The first exception to the statute will go into effect on July 1, 2004. Under new Sec. 6068(e)(2), California lawyers will be permitted to reveal “confidential information relating to the representation of a client to the extent that the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death . . . or substantial bodily harm . . . .” By this historic amendment, the lawyer’s exclusive duty to his or her client will be altered to include a new duty to protect other persons -- even if it means breaching the duty to the client. The amendment was not particularly controversial (though LACBA’s Professional Responsibility & Ethics Committee lobbied unsuccessfully to add “imminent” before “death or substantial bodily harm,” and others worried about creating new civil liability for lawyers, as Tarasoff v. Regents of University of California (1976) 17 Cal. 3d 425, did for psychotherapists), but it raises far-reaching questions for lawyers.

First, what real problem does the amendment address? Has the confidentiality of the attorney-client relationship actually resulted in the death or injury of another? It is conceivable, perhaps, but the legislative history does not tell us. The sponsors justified the amendment on the grounds that it will harmonize Sec. 6068(e) with Evidence Code Section 956.5, which had created a similar exception to the attorney-client privilege, and will “bring California in line with every other state in the nation and the ABA Model Rules of Professional Conduct,” but they did not describe any actual case in which someone was killed or injured because a lawyer had preserved a client confidence. The only case cited in the legislative reports, People v. Dang (2001) 93 Cal. App. 4th 1293, provides weak support. In Dang, a lawyer reported his client’s threats to harm witnesses (if they could not be bribed) to the district attorney and subsequently testified against his former client, who was convicted of several crimes including “dissuading witnesses by force or threat.” (Id. at 1296)  Whether the lawyer’s motive in disclosing his client’s confidential statements was to prevent an actual physical attack or simply to protect the integrity of the judicial process from bribes and intimidation is unclear. Furthermore, the Dang court is widely believed to have erred when it ruled that other California courts had held that exceptions to the attorney-client privilege in the Evidence Code created an exception to the duty of confidentiality in Sec. 6068(e).  (Id. at 1298-99)  If this holding were correct, there would be no citation of Dang in the legislative history because there would be no need to amend Sec. 6068(e). The apparent absence of any real problem to which the amendment is responding suggests that the statute is part of a larger effort to redefine the lawyer’s duty by recasting the lawyer as a guardian of the public in general.

Second, given this trend, how will redefining the lawyer’s duty in the relatively easy case of threatened death or bodily harm affect the lawyer’s duty of confidentiality in other cases where a different kind of crisis is perceived? As the sponsors of the amendment to Sec. 6068(e) noted, California is out of step with many other states and the ABA. These jurisdictions permit (and, in some cases, mandate) lawyers to blow the whistle on their clients, not merely in cases involving potential death or injury but also in cases involving fraud and financial harm to third parties. The latter cases are more pervasive than threats to kill witnesses and therefore represent a more serious challenge -- even though it remains unproven that lawyer-client confidentiality caused any of the well-publicized corporate scandals in recent years. Lawmakers, regulators, and prosecutors have seized upon these cases of corporate malfeasance and securities law violations and upon the war on terrorism as justification for redefining the confidential relationship between lawyers and their clients. For example, Justice Department regulations under the Patriot Act now permit the government to eavesdrop on the confidential conversations between criminal suspects and their lawyers. Also, Securities and Exchange Commission rules now permit lawyers to disclose confidential information about their client’s suspected violations of the securities laws without the consent of their clients (See SEC Rule 205.3(d)(2)) and assert that any lawyer who makes such disclosures will be free from bar discipline or civil liability.  (SEC Rule 205.6(c))

This is not the law in California yet. Here, corporate attorneys represent the corporate entity and owe their duties exclusively to the corporation, not its shareholders.  (Skarbrevik v. Cohen, England & Whitfield (1991) 231 Cal. App. 3d 692; see also Rule of Professional Conduct 3-600(A))  If the lawyer is unable to dissuade the client from an illegal course of action or one likely to result in substantial injury to the organization, the lawyer’s sole recourse is to resign. Whatever action is taken, the lawyer “shall not violate his or her duty of protecting all confidential information as provided in Business and Professions Code section 6068, subdivision (e).” (Rule 3-600(B) & (C))  By contrast, implicit in the new SEC whistle-blower rules is the assumption that the lawyer owes a duty to the corporation’s shareholders, potential investors, and the public at large. The Corporations Committee of the State Bar Business Law Section has advised the SEC that its rules conflict with Sec. 6068(e), but the conflict remains to be tested.

As each new perceived crisis presents itself and lawyers are pressured to become whistle-blowers instead of confidential advisors to their clients, they should ask whether this redefinition of the lawyer’s role will strengthen or weaken compliance with the law. It is doubtful that weakening California’s 132-year-old duty of confidentiality will make clients more likely to confide in their attorneys, and, therefore, such encroachments will make it harder for attorneys to advise their clients as to their obligations under the law.