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Lawyers do not violate the attorney-client privilege by testifying about confidential conversations with clients whom they reasonably believe are going to hurt or kill someone. In a case of first impression, the 2nd District California Court of Appeal in Los Angeles ruled Monday that Southern California lawyer Mark Smith did nothing wrong when he told prosecutors that client Chanh Minh Dang had told him he planned to “whack” witnesses he couldn’t buy off. Dang’s lawyers had argued that Smith’s action, and his subsequent testimony at trial, violated the attorney-client privilege. But the 2nd District ruled unanimously that Smith’s actions were protected by Evidence Code Section 956.5, which permits lawyers to disclose confidential information if necessary to prevent a client from committing a criminal act that could result in death or bodily harm. “We conclude that the language of Section 956.5 is plain and that it applies to the threats made by appellant,” Justice Norman Epstein wrote. “Under Section 956.5 there is no attorney-client privilege for such statements.” Justices Charles Vogel and Daniel Curry concurred. Dang was sentenced to more than 91 years in prison after being found guilty on 16 counts ranging from assault with a deadly weapon to dissuading witnesses by force or threat. He had been arrested in 1998 after assaulting his girlfriend and a family of seven with whom she was staying. After Smith protested Dang’s threat to kill witnesses, Dang then threatened to kill him. That’s when Smith reported Dang’s comments to the district attorney’s office and was taken off the case. According to Monday’s ruling, Evidence Code Section 956.5 went into effect Jan. 1, 1994, conforming California law with a 1969 American Bar Association rule on the subject. It also gave lawyers the same limited right to break confidences that the California Supreme Court afforded doctors and therapists in 1976 in Tarasoff v. Regents of the University of California, 17 Cal.3d 425. The 2nd District noted Monday that there is a possible conflict between Evidence Code Section 956.5 and Business and Professions Code Section 6068(e), which requires an attorney to maintain client confidences “at every peril to himself or herself.” The court pointed out, however, that the State Bar Court has held that the Business and Professions Code is modified by the exceptions to the attorney-client privilege in the Evidence Code. The case is People v. Dang, 01 C.D.O.S. 9874.

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