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SAN DIEGO CONFIDENTIAL: A Tale from the Ethical Hotline by Ross Simmons
The caller's problem was obvious. She was an attorney representing a juvenile defendant accused as the shooter in a drive-by shooting. Moments earlier, she had sat down with her teenage client to discuss damaging testimony expected from an eyewitness to the crime. The sullen youth stood up, swung open his jacket to reveal a handgun of "Dirty Harry" proportions and said, "Meeting over. I'll handle it." The attorney was very upset. While she felt obligated to preserve the confidentiality of the information just given to her by her client, she also believed the eyewitness could be in real and immediate danger. "What should I do?" she asked. I admit it: I was excited. Having recently spoken on this very issue, and having tracked developments in the area of client confidences for years, I sincerely believed that no one in the world could answer this question better than I. My racing mind momentarily paused on a rather demented thought – "God, I love legal ethics." I took a comforting approach, assuring her that such situations are not uncommon. I shared a few anecdotes to put her at ease, including my own experience with an attorney-client relationship that had turned violent. I told her that State Bar officials tell me that their hotline gets about one such call each and every week. "OK, so what do I do?" the caller reiterated politely. My heart fluttering, I waded straight in with both feet. The California Rule I told her California law is deceptively simple. Business and Professions Code section 6068(e) states clearly that an attorney must "maintain inviolate the confidences, and at every peril to himself or herself…preserve the secrets, of his or her client." "Confidence" is taken to mean information protected by the attorney-client privilege, while "secrets" refers to any other information gained in the professional relationship which the client has requested to be held inviolate or which would likely be embarrassing to detrimental to the client if disclosed. (State Bar Opn. No. 1976-37.) I told the attorney that her local ethics committee had already concluded that on facts similar to hers, an attorney would be subject to discipline if the attorney disclosed her client's comment to any third party. (SDCBA Opn. No. 1990-1.) I did point out, however, that both the ABA Model Code and the Model Rules permit disclosure under the same exact circumstances. The former allows revelation of "the intention of [a] client to commit a crime and the information necessary to prevent the crime," while the latter more narrowly permits disclosure of information a lawyer "reasonably believes necessary to…prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm." I observed that neither model is binding authority to California state court practice, but that they do have a bearing on federal practice here. I also told the caller about an opinion from the Los Angeles Ethics Committee, which extrapolating from the ABA authorities, found an "implicit" exception to the California statute permitting disclosure in situations where an attorney is advised of a client's intent to commit a crime likely to result in imminent death or serious bodily harm. (LACBA Opn. No. 436 (1985).) I resisted the temptation to ask the attorney whether the eyewitness lived in San Diego or Los Angeles. "OK, but what do I do?" I could sense the caller becoming irritated.
Undaunted, I charged ever analytically onward. I reported to her that in 1993, the California legislature enacted an exception to the attorney-client privilege where "the lawyer reasonably believes that disclosure of any confidential communication relating to the representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm." (Cal.Eve.Code § 956.5) While seemingly contrary to the broad sweep of the Business and Professions Code prohibition against disclosure, I assured her that intellectually speaking, they were not truly in conflict. The attorney-client privilege relates to the disclosure of information by legal compulsion, while the latter duty of confidentiality is much broader. Evidence Code section 956.5 would mandate disclosure by the caller if legally compelled to do so; Business and Professions Code sections 6068(e) would otherwise facially prohibit it, particularly in instances of voluntary disclosure. I heard only a sigh of exasperation in reply.
I cautioned the caller that there had been much speculation as to whether an attorney could be held liable in money damages to a third party victim for failing to disclose a known thread of harm. I reminded her of the California Supreme Court's landmark decision in the case of Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425, where the heirs of a third party victim were allowed to proceed in a civil action against a clinical psychologist who had been alerted to his patient's intent to kill the victim, but made no effort to warn the victim. I proffered my view that there were legitimate arguments both for and against an expansion of Tarasoff to a legal professional having the same sort of prior knowledge. On the one hand, there is legislative history which suggested that such an expansion was intended with the 1993 enactment of Evidence Code section 956.5, albeit accomplished unartfully. On the other hand, the therapist in Tarasoff did not have the authority as sweeping as Business and Professions Code section 6068(e) by which to justify nondisclosure. "We're waiting for the test case," I observed with an intellectual flourish. Finally, I referenced repeated, ineffective attempts by the State Bar to intervene in this area; efforts which in my view had added no substantive direction and yet muddled more the civil liability question. Most recently, the State Bar submitted Proposed Rule 3-100 for consideration by the California Supreme Court, recommending its adoption. Proposed Rule 3-100 provides that an attorney "may, but is not required 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." While aimed at "harmonizing" purportedly inconsistent legislative authority in the area, I suggested to the caller that it again directly contradicted section 6068(e). Whether or not the California Supreme Court feels confident contradicting the legislature in this respect is not clear, especially since the Court has spurned the State Bar on two previous attempts to enact similar professional rules. I told her that the latest proposed rule had been submitted to the Court just a month before, and the timing of its adoption or rejection was not certain. I gave my opinion that the adoption of Proposed Rule 3-100 will only further confuse the confusion. Clearly, the State Bar was careful to facially distance the applicability of Proposed Rule 3-100 from any standard for civil liability, electing to couch the rule in permissive tones. However, we also know that appellate law is clear that the California Rules of Professional Conduct may be used as evidence of a standard of care, and to the extent an attorney "may" disclose a client's threat of violence, but opts for client protection by not disclosing the threat to the intended victim, it would seem that a case may be made for liability. It was precisely the fear that Proposed Rule 3-100 might inject Tarasoff-type civil liability into the legal profession that prompted the San Diego County Bar Association ethics committee to formally oppose its adoption.
On the other end of the telephone, there was only silence. It was that very moment that I realized I had essentially said absolutely nothing to this caller in need. Eventually, she drew an exasperated breath and asked me the question one more time, in a voice grown weary and resigned. "That's nice. So, what do I do?" For the first time during our conversation, there was silence at my end of the line. I drew an exasperated breath of my own, and finally said, "Now you know as much as I do. It's up to your conscience to decide." I had sincerely intended this parting thought to be profound, but even as the words left my lips, I knew I sounded profoundly vapid. And profoundly stupid, though I knew in my heart that I had done the very best for her that anyone possibly could have. As I hung up the phone, a demented thought suddenly entered the numbness of my mind – "God, I hate legal ethics."
Copyright 1998 San Diego County Bar Association. All rights reserved.
Originally published in San Diego Lawyer Magazine, September/October 1998.
Reprinted by permission. |