The New Lawyer Referral Service–Client Privilege in California
On August 19, 2013, California Governor Jerry Brown signed Assembly Bill No. 267 into law, amending and adding new provisions to the California Evidence Code which specifically provide for a lawyer referral service–client privilege. As the Legislative Counsel's Digest stated, in part: "This bill would provide that a person who consults a lawyer referral service . . . for the purpose of retaining a lawyer or securing legal advice has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between the client and the lawyer referral service if the privilege is claimed by a specified person or entity." As one ABA LRIS list serve participant remarked: "Finally legislation in California protecting communications between clients and lawyer referral services. California LRSs can now fight those subpoenas and assure clients that the conversations [are] safe. Phew!"
While California LRIS directors may breathe a sigh of relief, other directors around the rest of the country may scratch their heads and wonder what their California colleagues now have that they do not. They may be asking themselves: Why did California have to add this privilege? What is the back–story? What do the new amendments provide? What effect might these amendments have on other states, including mine?
Until now, communication with a California LRIS was not clearly privileged
California Lawyer Referral and Information Services, which are approved by the State Bar of California, operate in accordance with the Bar's Minimum Standards for a Lawyer Referral Service. For this reason, they have only enjoyed partial statutory immunity against negligent referral claims for twenty years.
California Business and Professions Code § 43.95 provides, in part, that:
There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any professional society or any nonprofit corporation authorized by a professional society or any nonprofit corporation authorized by a professional society to operate a referral service, or their agents, employees, or members, for referring any member of the public to any professional member of the society or service, or for acts of negligence or conduct constituting unprofessional conduct committed by a professional to whom a member of the public was referred, so long as any of the foregoing persons or entities has acted without malice, and the referral was made at no cost added to the initial referral fee as part of a public service referral system organized under the auspices of the professional society.
In order to maintain immunity for negligent referral, a service must disclose to the referral client the nature of any disciplinary action, taken by the State Bar against a lawyer to whom a referral is being made, of which it has actual knowledge, unless the disciplinary proceeding resulted in no disciplinary action against the lawyer.
Business and Professions Code § 43.95 makes no mention of the nature of the relationship between the Lawyer Referral and Information Service and its lawyer members, nor does it discuss California's statutory attorney–client or — in California — "lawyer–client" privilege.
Under California Evidence Code § 952, "confidential communication between client and lawyer" means
information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.
The statutory lawyer–client privilege in California makes no mention of, nor discusses, whether communications made by a client to an authorized lawyer referral service are protected by the lawyer–client privilege.
While the question of whether communications by an individual to a lawyer referral service, while seeking a referral, could arise in any type of case, the issue first arose in a criminal case. The San Francisco District Attorney issued a subpoena to the Bar Association of San Francisco's Lawyer Referral and Information Service (BASF), seeking what the defendant may have said to BASF staff in his attempt to obtain a referral. BASF filed a motion to quash the subpoena, arguing that whatever the defendant may have said fell within the lawyer–client privilege and thus not subject to disclosure. Ultimately the case was disposed of without BASF disclosing the requested material and without any reportable decision by the Courts.
The San Francisco District Attorney never again attempted to subpoena client information from BASF, but that one subpoena provided the genesis of a more than ten–year effort by lawyers and lawyer referral services in California to codify BASF's assertion that information provided by a prospective client during the referral process was privileged and not subject to disclosure. That effort has finally come to fruition.
What do the new California Evidence Code amendments provide?
On August 19, 2013, California Evidence Code § 912 was amended and new Evidence Code §§ 965 through 968 were added which specifically provide for a lawyer referral service–client privilege in California. Under new Evidence Code § 965(a), the new lawyer referral service–client privilege provides that "client" means
a person who, directly or through an authorized representative, consults a lawyer referral service for the purpose of retaining, or securing legal services or advice from, a lawyer in his or her professional capacity, and includes an incompetent who consults the lawyer referral service himself or herself or whose guardian or conservator consults the lawyer referral service on his or her behalf.
And, under § 965(b), "[c]onfidential communication between client and lawyer referral service" means
information transmitted between a client and a lawyer referral service in the course of that relationship and in confidence by a means that, so far as the client is aware, does not disclose the information to third persons other than those who are present to further the interests of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer referral service is consulted.
Finally, under § 965(d), "[l]awyer referral service" means
a lawyer referral service certified under, and operating in compliance with, § 6155 of the Business and Professions Code or an enterprise reasonably believed by the client to be a lawyer referral service certified under, and operating in compliance with, § 6155.
[As mentioned above, lawyer referral services operating in California must be approved by the State Bar and comply with California's Minimum Standards, which are found under § 6155 of the California Business and Professions Code.]
Under the new lawyer referral service–client privilege — Evidence Code § 966(a) — the client has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer referral service. The people authorized to assert the privilege are: 1) the holder of the privilege (the client); 2) someone the client has authorized to assert the privilege; and 3) the lawyer referral service or staff member thereof.
Importantly, the lawyer referral service is not allowed to raise the privilege if there is no holder of the privilege in existence or if the lawyer referral service has been instructed to disclose the information by the client or a person authorized to permit disclosure on the client's behalf. Absent those exceptions, however, the lawyer referral service may not disclose any information provided by the client as part of the referral process.
In addition, there is no privilege if the services of the lawyer referral service were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud. Nor is there a privilege where a staff person of the lawyer referral service, who receives a confidential communication in processing a request for legal assistance, reasonably believes that disclosure of the confidential communication is necessary to prevent a criminal act that the staff person of the lawyer referral service reasonably believes is likely to result in the death of, or substantial bodily harm to, an individual.
What effect might these amendments have on other states, including mine?
An excellent question! In California, at least, the question of whether client communications to a lawyer referral and information service are subject to disclosure is settled. The next question — particularly for lawyer referral and information services which operate without even the benefit of statutory negligent referral immunity — is what effect, if any, will the establishment of a California lawyer referral service–client privilege have on future negligent referral claims in other states? And, what would be the best course of action to achieve the same privilege that California lawyer referral and information services now enjoy? Sorry to assign homework, but that is a matter for future discussion with your local LRIS committee — tell them to get to work!
Ronald H. Abernethy is Napa County Public Defender and Past Chair of the ABA Standing Committee on Lawyer Referral and Information Service.