overnment lawyer Cindy Ossias got away with spilling the beans last year about ex-Insurance Commissioner Chuck Quackenbush's indiscretions, but from now on not all attorney whistle-blowers may be as fortunate.
They could face State Bar discipline ranging from a slap on the wrist to disbarment.
In an opinion made public Wednesday, the attorney general's office said that the protections of the state's three whistle-blower laws do not supersede the attorney-client privilege of confidentiality.
"An attorney's duty to maintain inviolate the confidences of a client lies at the core of the attorney-client relationship and of our legal system," Deputy Attorney General Anthony DaVigo wrote in a 10-page opinion dated May 23.
The opinion goes on to say that public lawyers who believe their clients have crossed the ethical line have other options. They could urge the client to reconsider his or her actions, take their concerns to a higher authority within the agency or simply resign.
"What this means is that a lawyer who is an employee of a government entity has to fulfill his attorney-client obligations, and that the whistle-blower statutes offer no free pass," ethics lawyer Robert Kehr, a partner in Los Angeles' Kehr, Schiff & Crane, said Wednesday. "They should not think they can avoid their responsibilities."
The opinion was sought by state Assemblyman Darrell Steinberg, a Sacramento Democrat who sponsored AB 363, which asks the State Bar and others within the legal profession to clarify when lawyers can blow the whistle on their own clients.
"This bill seeks the quick resolution of a challenging issue that has long faced public sector attorneys throughout California," a legislative analysis states. "How, and under what circumstances, may they safely strive to protect the public interest by reporting potentially serious government abuse, even if that means disclosing client confidences?"
Steinberg's legislation and request for an AG's opinion were spurred by the case of Ossias, a staff attorney with the Department of Insurance who went to the Legislature last year to disclose wrongdoing by officials within her agency. Then-Insurance Commissioner Quackenbush ultimately resigned after Ossias gave legislators documents showing that Quackenbush had been complicit with three major insurers in reducing the amount of money going to victims of the 1994 Northridge earthquake.
The State Bar subsequently investigated Ossias to determine whether she had violated state ethics rules -- particularly the attorney-client privilege -- by going public. In November, State Bar prosecutors determined that Ossias had done nothing wrong.
Frances Fort, a spokeswoman for Steinberg, said Wednesday that during the Quackenbush hearings several other Insurance Department attorneys wanted to come forward, but feared breaching the attorney-client privilege.
"Darrell believes there are instances when the public interest should override [the attorney-client privilege]," she said. "The bottom line, what we want, is clarity."
The AG's opinion does that fairly effectively by making it clear that not every lawyer whistle-blower will escape discipline and that the State Bar will need to judge each case on its own facts.
Ossias couldn't be reached Wednesday and her lawyer during the State Bar investigation, Zitrin & Mastromonaco partner Richard Zitrin, declined comment, saying he hadn't had a chance to read the opinion.
But Robert Hawley, the State Bar's chief assistant general counsel, noted Wednesday that the issues raised by the Ossias situation aren't unique to California.
"This is a national issue," he said. "There is a big tension between the duty of an attorney to maintain a client's confidences and the duty of an attorney not to let his services be used for criminal or fraudulent purposes."
The AG's opinion recognizes that tension by discussing the balancing act lawyers must conduct in trying to heed the attorney-client privilege in the face of the California Whistle-blower Protection Act, the Whistle-blower Protection Act and the Local Government Disclosure of Information Act. But in the end, it cautioned lawyers to think twice before acting on their conscience.
"We may not conclude," Deputy AG DaVigo wrote, "that the Legislature, by the enactment of the three whistle-blower statutory schemes, intended to supersede or impair by mere implication the strong and long-established public policy in support of the attorney-client privilege."
Hawley, of the State Bar, said the group studying the issue, per Steinberg's bill, is glad to have the AG's opinion.
"We asked for this guidance," he said. "And now this study group is taking a look at what, if anything, is appropriate to do."
