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California has become the last state in the nation to allow a lawyer to disclose confidential client information necessary to prevent a crime of bodily injury or death, even if the client is not the perpetrator. The measure was backed by the State Bar of California, but many of its 143,547 active members fought the incursion into client confidences, asserting that it upended the state’s 135-year-old injunction that, absent a client’s consent, a California lawyer must keep a client’s secrets. Lawyers opposed to the measure fear that California will join other states in making further incursions into client confidences by allowing disclosure of confidences to prevent any crime, or even to prevent financial harm when the client’s conduct is not criminal. Mark Tuft of San Francisco’s Cooper, White & Cooper, said that there is no need for the new law. “Good lawyers in California would never allow a client to commit an act that would lead to death or serious bodily injury,” he said. Ken Mohr, a Western State University College of Law professor in Fullerton, Calif., said “it’s a good first and final step for California. They should have had the exception for many years.” Mohr, a former chairman of the State Bar of California’s Committee on Professional Responsibility and Conduct, also said that “[w]e ought to value life . . . it is the only place we should carve out an exception to the duty of confidentiality.” Mohr said that he was not speaking for the state bar. Another California ethicist said that the new law is not the first inroad into client confidentiality in California. “You could already break client confidentiality to defend yourself against accusations by a client or to collect a fee,” said Richard Zitrin, director of the Center for Applied Legal Ethics at University of San Francisco School of Law and a partner in San Francisco’s Zitrin & Mastromonaco. “All we did was make another exception for life and death.” He asserted that it took California so long to come on board because the law was fiercely fought by “some of the old-time ethics hands.” California Assembly Bill 1101 was signed by then-Governor Gray Davis on Oct. 10, and takes effect on July 1, 2004. While disclosure to prevent a crime of great bodily injury or death is permitted in California, it is mandatory in 11 states. Thirty-seven states permit disclosure of any crime, while four states mandate it. Eleven states permit disclosure of a noncriminal fraud. Previously, under the California evidence code, an attorney could also breach confidentiality when compelled to do so by a subpoena in a situation where a client threatened great bodily injury or death. Because the requirement is not mandatory, Columbia University Law School Professor Michael Dorf asserted that the law won’t change much. “I think that these rules are designed to help a lawyer walk a tightrope over the public’s perception and outrage that they are always serving their private clients over the public interest,” he said. But Dorf doesn’t think the popular view of a lawyer continually struggling over ethical and legal obligations reflects reality. “The tendency for better or worse is to do everything you can for your client-is to see it more as against your client’s interest than bad for the public interest,” Dorf said. Joining the pack The new law brings California in line with the American Bar Association’s (ABA) Model Rule 1.6(b)(1), which permits disclosure of confidential information relating to representation of a client under the same circumstances set out in the new bill. The language only differs in that, in the ABA rule, the standard is a “reasonable certainty” that the injury will occur and the standard in California is “likely” to occur. Since 2002, the ABA’s model rule no longer requires that the perpetrator be the client, the act criminal or the threat imminent. Tuft said he can live with the new law, but both he and Mohr fear the California Legislature won’t stop there when it comes to breaching client confidentiality. They think that ABA model rules 1.6(b)(2) and (3) should never see the California sun. Those rules permit a lawyer to breach client confidentiality if a client has used the lawyer’s services to commit “a crime or fraud that is reasonably certain to result . . . in substantial injury to the financial interests” of another or to “prevent, mitigate or rectify” substantial injury to those interests resulting from the client’s commission of a crime or fraud. Zitrin doesn’t see those rules coming to California in the near future. “It took us 20 years to pass the recently amended 1983 ABA rule,” he said. “I don’t think there’s much danger of our passing the [2003] (b)(2) and (b)(3) rules anytime soon.” Post’s e-mail address is [email protected].

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