State Bar Of California Standing Committee On Professional Responsibility And Conduct - Center for Professional Responsibility

STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT

January 13, 1999

American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611

Re: Proposed changes to Model Rule 4.2 (11/10/98 draft)

Dear Commissioners:

I write on behalf of the State Bar of California's Standing Committee on Professional Responsibility and Conduct ("COPRAC"), whose activities are funded in part by the Foundation of the State Bar of California.

We approve of the Commission's decision to defer to the judiciary in deciding when prosecutors may, at the pre-indictment stage, conduct investigative activities that might otherwise violate rule 4.2. The rule achieves that goal in comment 3, which defines communications "authorized by law" to include "constitutionally permissible investigative activities of lawyers representing governmental entities, directly or through investigative agents, prior to the commencement of criminal or civil enforcement proceedings."

However, the comment goes on to limit the term "authorized by law" to those situations in which "there is applicable judicial precedent that either has found the activity permissible under this Rule or has found this Rule inapplicable." Such a qualification would inappropriately freeze the common law as it now stands, contrary to public policy favoring the continuing development of the law to adjust to new situations and contemporary standards. For instance, here in California, there is an opinion issued by the state Attorney General interpreting Rule 2-100 of the Rules of Professional Conduct, which is our analog to Model Rule 4.2. Prosecutors may want to rely on this opinion, even if there is no judicial decision directly on point which has construed Rule 2-100. We therefore suggest the deletion, in the first sentence of comment 3, of everything in that sentence after the words "when there is applicable judicial precedent."

Further, the second sentence of comment 3 -- which states that "the Rule imposes ethical restrictions that go beyond those imposed by constitutional provisions" -- is at odds with the first sentences's equation of "authorized by law" with "constitutionally permissible." We suggest that the second sentence be deleted, because it gives no guidance concerning what ethical standard applies beyond the constitutional limits on the activities of prosecutors. If the Commission intends to impose some further requirement -- which we think unnecessary -- then the additional requirements should be stated clearly.

Finally, we believe Rule 4.2 should state expressly, in language similar to that used by California's Rule 2-100, that the rule "shall not prohibit communications initiated by a person seeking advice or representation from an independent lawyer of the party's choice." Proposed rule 4.2, as currently drafted, technically prohibits an attorney from talking to a potential client who, on the client's own initiative, seeks a second opinion concerning a matter in which the client is represented by an attorney. Obviously, the rules should not inhibit a client's ability to seek a second opinion, which might involve the client's concern over his or her current attorney. Proposed rule 4.2 as drafted does not appear to be in the best interest of the client to the extent it limits a client's freedom to seek advice from a lawyer of the client's choice.

This comment from the State Bar of California Standing Committee on Professional Responsibility and Conduct does not constitute the position of the State Bar of California or its Board of Governors. The Board of Governors is free to submit its own comment on behalf of the State Bar of California.

Sincerely,

Harry B. Sondheim
Chair

cc:  COPRAC members
State Bar Board of Governors liaisons to COPRAC:
Judith Gilbert, Esq.
Andrew Guilford, Esq.
Paul Hokokian, Esq.
James Seff, Esq.
David Bell, Esq., COPRAC Staff Counsel

 

STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT

January 13, 1999

American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611

Re: Proposed changes to Model Rule 1.6 (draft no. 6)

Dear Commissioners:

I write on behalf of the State Bar of California's Standing Committee on Professional Responsibility and Conduct (COPRAC), whose activities are funded in part by the Foundation of the State Bar of California.

As you might be aware, California lawyers are governed by some of the strictest rules and most client-protective confidentiality rules in the country. The statute that codifies California lawyers' ethical duty to maintain client secrets contains no exceptions whatsoever. Cal. Bus. & Prof. Code ' 6068(e). California's version of the attorney-client privilege is subject to some exceptions analogous to certain exceptions contained in proposed rule 1.6, but all of those exceptions are drafted more narrowly than the Commission's proposed rule. See Cal. Evid. Code '' 956 (crime-fraud exception), 958 (no privilege for communication relevant to breach of duty arising out of the lawyer-client relationship). Moreover, these exceptions do not allow an attorney unilaterally to disclose privileged information. Rather, the exceptions to the privilege merely define the situations when an attorney may be ordered to divulge confidential communications. Absent such an order, which an attorney is ethically obligated to resist absent client consent (Cal. Evid. Code ' 955), Business & Professions Code ' 6068(e) forbids voluntary disclosure by an attorney of client secrets or confidential communications.

California has been slow to adopt any exception to the ethical duty of confidentiality. In 1993, our Legislature enacted Evidence Code ' 956.5, which provides that there is "no privilege" protecting a communication if an attorney "reasonably believes that disclosure . . . 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." However, that exception to the attorney-client privilege is not technically an exception to California attorneys' statutory duty to maintain their clients' secrets. Prior to and after the enactment of Evidence Code ' 956.6, the State Bar of California presented proposed Rules of Professional Conduct to the California Supreme Court that would have carried the policy stated in Evidence Code ' 956.5 through to the duty of confidentiality. Three times, the Supreme Court has refused to enact the rule proposed by the State Bar. Thus the question of whether and to what extent Evidence Code ' 956.5's exception to the attorney-client privilege extends also to California's statutory duty of secrecy is currently undecided in California.

COPRAC, having supported proposals to allow attorneys to disclose information necessary to prevent the infliction of death or serious bodily injury, supports in principle the similar portions of proposed rule 1.6 -- with some qualifications noted below. But proposed rule 1.6 goes much, much further in permitting attorneys to disclose confidential information entrusted to them by their clients. COPRAC is extremely concerned that confidentiality exceptions extending beyond those necessary to prevent death and serious bodily injury will interfere with the ability of lawyers to fulfill their role as counselors, a role which depends on receiving a free and unguarded flow of information from the client. Lawyers cannot fulfill their function as counselors, guiding their clients towards more ethical alternatives, nor can they competently fulfill their roles as advocates, if clients withhold information because they fear the lawyer's response to it.

Neither of the lawyer's roles is consistent with the lawyer acting as a law enforcement official or as the arbiter or enforcer of social norms. We do not believe that lawyers should accept confidential information from clients for the purpose of providing them with confidential counsel, only to reveal that information to others if, in the lawyer's unilateral judgment, the client might do or has done something wrong. Lawyers should not be permitted to act as judge, jury, or prosecutor regarding the conduct, threatened conduct, or perceived possible conduct of their clients. The mere possibility of such disclosure destroys the trust that forms the basis for an effective lawyer-client relationship-the kind of relationship in which a lawyer forthrightly can tell a client when the client has or is about to step over a legal or ethical line, and can present to the client a range of alternative courses of action and their risks and costs.

We believe that, overall, the duty of confidentiality increases compliance with law and reduces the burden on the judicial system, even if some clients misuse confidentiality for their own ends. We urge the Commission not to focus undue attention on the relatively few instances where clients misuse confidentiality. If we enact rules that chill the candor of clients with their lawyers, than the atypical situation will govern the typical: clients will receive poor advice based on incomplete facts; clients contemplating an illegal or fraudulent act will miss the opportunity to receive good counsel about the consequences of the behavior and will not learn of alternative courses of action; potential clients will avoid seeking legal advice; and society at large will lose out on the increased compliance with law that confidential lawyer-client relationships ultimately foster.

In addition to these general comments, we have the following specific comments:

Subsection (a). In this and the following subsections, there is no definition of "relating to the representation" and therefore no attempt to distinguish among information received before, during or after a representation and no attempt to distinguish (if appropriate) based on the source of the information or whether it was received because of the representation.

Subsection (b)(1) through (b)(3). We believe that there are fundamental problems with these proposed subsections, including at least the following:

(i) This draft eliminates the condition that the death or substantial bodily harm must arise from the client's criminal act (an essential element in California's Evidence Code ' 956.5), thus freeing lawyers who represent lawful businesses to use confidential information to disrupt their clients' activities. There should be no suggestion that tobacco companies, gun manufacturers, chemical companies, or any other clients are not entitled to the full benefits of the lawyer-client relationship. The essential duty of a lawyer is to guide and represent his or her client. If the lawyer does not feel morally able to do so, so that the lawyer does not believe the representation will be competent, then the lawyer should resign and remain silent;

(ii) Any rule in this area should state that there is no duty to use or disclose any client information even when permitted, and that an attorney incurs no civil liability for failing to use or disclose the confidential information;

(iii) Because of the fundamental nature of the lawyer's duty of confidentiality, the rule should state that even if use or disclosure is permitted, the lawyer should consider and, when appropriate, pursue alternatives to use or disclosure, and that failure to disclose will not result in civil liability;

(iv) The rule should contain a standard of imminence. The lawyer should not use confidential information if there is time that might allow for another solution to be found independent of the lawyer;

(v) The rule should make clear that it does not override any duty of secrecy found in any other applicable law. For example, California Health & Safety Code ' 120980 makes it a crime in certain situations to reveal the result of a HIV test; and

(vi) This draft would allow lawyers to undertake a relationship with a client for the purpose of obtaining information to use to the detriment of the client. This would permit lawyers to use their status as lawyers for a client to obtain information concerning the client in order to act as fifth columnists, betraying the interests of the client.

Subsection (b)(4). We approve this. Among other things, this is a device for encouraging confidential peer review. It reflects what probably is a general understanding that such peer review is not a breach of confidentiality because its goal is to help the lawyer properly and competently accomplish the purpose for which he or she was consulted by the client or potential client.

Subsection (b)(5). We believe that the language here creates two significant risks which should be considered further:

(i) The introductory phrase would allow the lawyer to reveal otherwise confidential information in a controversy with the client that does not arise out of the lawyer-client relationship. This creates a potentially powerful weapon for the lawyer. Compare this to the narrower language of our California Evidence Code ' 958, under which the evidentiary privilege does not extend "to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship."

(ii) The second and third phrases of subsection (b)(5) give third parties the power to waive a client's right to confidentiality, which undermines severely the confidentiality of the attorney-client relationship. Indeed, the proposed rule creates an incentive for a governmental or private adversary of a client to initiate a claim or charge against the client's lawyer as a device for obtaining information not otherwise available to the client's adversary. The rule as drafted does not even require that the lawyer be placed at risk of civil or criminal liability before the attorney is authorized "to respond . . . to allegations concerning the lawyer's representation of the client." By our lights, attorneys may not violate their duty of confidentiality to salvage their wounded egos or reputations. This exception to the confidentiality principle should be drafted much more narrowly and should specify that lawyers bear a heavy responsibility to maintain confidentiality and, even at risk and cost to the lawyer, to find ways to avoid and minimize any disclosure.

This comment from the State Bar of California Standing Committee on Professional Responsibility and Conduct does not constitute the position of the State Bar of

California or its Board of Governors. The Board of Governors is free to submit its own comment on behalf of the State Bar of California.

Sincerely,

Harry B. Sondheim,
Chair

cc: COPRAC members
State Bar Board of Governors liaisons to COPRAC:
Judith Gilbert, Esq.
Andrew Guilford, Esq.
Paul Hokokian, Esq.
James Seff, Esq.
David Bell, Esq., COPRAC Staff Counsel

 

STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT

January 13, 1999

American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611

Re: Proposed changes to Model Rule 1.7 (draft no. 6)

Dear Commissioners:

I write on behalf of the State Bar of California=s Standing Committee on Professional Responsibility and Conduct ("COPRAC"), whose activities are funded in part by the Foundation of the State Bar of California.

1. Suggestion that informed consent ordinarily requires oral discussion in addition to written disclosure. We support the Commission's intention to require written consent whenever the rules require a client's consent to be obtained. However, the Commission's proposed comment [8a] goes a step further by suggesting that the lawyer should, "in most cases," also "talk with the client" about the conflict. That is less onerous than the prior draft's suggestion that attorneys must, in most cases, conduct an "in-person meeting" concerning conflicts of interest in addition to securing a written waiver. However, we do not believe it wise to require attorneys to have an in-person meeting or oral discussion in addition to obtaining informed written consent. First, we believe that a written disclosure and written consent serves the needs of clients better than oral communications, because a writing allows the client to absorb and evaluate the pertinent information outside the attorney's presence. If the client elects not to hire the attorney or to discharge the attorney, the client can do so without the awkwardness and pressure that a face-to-face meeting or even a telephone call might otherwise present. Second, requiring a discussion and a writing makes clearing even the most routine conflict unduly time-consuming and cumbersome for the attorney and the client. Business clients in particular will object strongly to attending face-to-face meetings or submitting to telephone discussions, the sole purpose of which is to discuss conflict issues. A rule requiring "discussion" in addition to written disclosure and consent is unrealistically burdensome on practicing lawyers.

2. Corporate constituents. The Commission's proposed comment [18] states, "A lawyer who represents a corporation or other organization does not, by virtue of that representation, necessarily represent any constituent or affiliated organization." To our thinking, the baseline rule is that a corporate lawyer does not represent any constituent of the corporation, including affiliated organizations. The use of the word "necessarily" implies that corporate counsel sometimes take on corporate constituents as clients as a matter of law. We do not think that is the meaning intended by the Commission. We suggest changing the sentence quoted above along the following lines: "A lawyer who represents a corporation or other organization does not, merely by virtue of that representation, necessarily represent any constituent or affiliated organization." This revision would emphasize that something more than one's status as a corporation's lawyer is necessary to create an attorney-client relationship with a constituent.

3. Joint representation. Proposed comment [23] discusses the problems that arise when joint clients come into disagreement with one another, but the comment does not mention that those dangers can largely be avoided by lawyers who obtain consent from the joint clients at the outset. See Zador v. Kwan, 31 Cal. App. 4th 1285, 1301 (1995). Without that qualification, the comment's disastrous-sounding warnings seem to apply even when a lawyer undertakes a joint representation with a solid joint representation agreement.

It would also be helpful if this comment's examples were more specific regarding the matters on which the lawyer represents joint clients. For instance, the comment states that "a lawyer cannot undertake common representation of clients between whom contentious litigation is imminent or who contemplate contentious negotiations." That statement is correct insofar as the lawyer is seeking to represent the clients concerning their dispute or negotiations with each other. But it may not be correct if the joint clients desire joint representation to present a united front to a third party. Example: Corporation and one of its managerial employees are defendants in a sexual harassment case. The corporation and manager disagree bitterly about whether the corporation will pay for any damages awarded against the manager and also have a dispute about whether any disciplinary action should be taken against the manager. A single lawyer should not represent the corporation and the manager in their dispute with each other, but a single lawyer could, with consent from both clients, defend the corporation and the manager in the lawsuit.

4. Conflicts arising from mergers and acquisitions. New language added to comment [18a] states that, when a change in corporate affiliations results in a lawyer being adverse to a client, then the lawyer may choose from which of the two representations to withdraw. For instance, "when a company sued by the lawyer on behalf of one client is bought by another" of the lawyer's clients, then the lawyer may choose which representation from which to withdraw to cure the conflict. The comment is a correct statement of existing law. Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1127 (N.D. Ohio 1990); Ex parte AmSouth Bank, 589 So. 2d 715, 719 (Ala. 1991); Truck Insurance Exchange v. Fireman's Fund Insurance Co., 6 Cal. App. 4th 1050, 1059 (1992) (citing Gould and AmSouth). However, the comment's new statement that "Ordinarily, the lawyer should withdraw from the representation of the client who will be least harmed by the lawyer's withdrawal" improperly calls for the lawyer to resolve competing interests of two clients by making a normative judgment. We suggest that this new sentence be deleted, because it is not appropriate for an attorney to make value judgments between two clients.

5. "Consentable." The Commission's proposed revisions use this word extensively to describe situations in which an attorney may not accept or continue a representation even if the affected clients give their consent. While this word is more concise than other alternatives, it strikes us as an awkward usage that would better be avoided.

This comment from the State Bar of California Standing Committee on Professional Responsibility and Conduct does not constitute the position of the State Bar of California or its Board of Governors. The Board of Governors is free to submit its own comment on behalf of the State Bar of California.

Sincerely,

Harry B. Sondheim
Chair

cc: COPRAC members
State Bar Board of Governors liaisons to COPRAC:
Judith Gilbert, Esq.
Andrew Guilford, Esq.
Paul Hokokian, Esq.
James Seff, Esq.
David Bell, Esq., COPRAC Staff Counsel

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