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California soon will join every other state in the nation by freeing lawyers to violate a client’s confidentiality if they believe doing so could prevent injury or death to another person. While most praise the concept as a good move long overdue, some lawyers fear it could be the first step toward undermining state laws holding that the confidentiality of attorney-client relationships is inviolate. “It’s a camel’s nose under the tent,” Robert Gerber, a partner in the Del Mar Heights office of Los Angeles’ Sheppard, Mullin, Richter & Hampton, said Thursday. “It’s an opening up of what’s traditionally been a very sacred attorney-client privilege that will make us less effective counselors.” The new disclosure law broadens the state’s Evidence Code by providing that the attorney-client privilege can be broken when a lawyer “reasonably believes” that disclosure is necessary to prevent a criminal act by any person, including a client, that could result in death or substantial injury. The law, passed by the state Legislature last year but not effective until July 1, makes disclosure discretionary, not mandatory. On May 22, the State Bar Board of Governors plans to meet in Los Angeles to discuss making a related change in ethics rules, so that attorneys won’t be subject to disciplinary action if they comply with the new statute. Kevin Mohr, a professor at Fullerton’s Western State University College of Law, said the new law provides the first exception to the attorney-client privilege in more than 130 years. “A lawyer can now take action and intervene and prevent [a] criminal act from occurring,” said Mohr, who chaired the 21-member State Bar task force that developed the ethics rule change mandated by the state Legislature last year. “It allows lawyers to do the right thing without fear of being subjected” to discipline. The State Bar had tried to push through similar statutory and ethics changes in 1987, 1992 and 1998, but was rejected each time by the state Supreme Court, which didn’t think it had the authority to carve out an exception to a legislative act. The court, which had a representative on the task force, is expected to approve the current proposal. “The Legislature has actually authorized the rule this time,” Mohr said. Assemblyman Darrell Steinberg, the Sacramento Democrat who authored the bill, felt that California lawyers were caught between a rock and a hard place when faced with situations in which complying with confidentiality could cost someone’s life. Groups as diverse as the California District Attorneys Association and the Gray Panthers backed the change. Opponents included the San Diego County Bar Association’s ethics committee and many of the attorneys on the State Bar’s litigation section, including Gerber, a former chairman, and Charles Berwanger, who is on the section’s executive committee. “Our concern was that to allow disclosure would discourage clients from being forthright and complete,” said Berwanger, a partner in Gordon & Rees’ San Diego office, “and would, in turn, render the attorney’s advice incomplete.” Gerber, of Sheppard Mullin, said there are also worries that the change will expose lawyers to liability if they choose not to rat on a client who then goes out and kills someone. Since the standard for disclosing is reasonableness, he said, malpractice lawyers could argue that the attorney who failed to disclose owed a duty to the victim. “It puts lawyers in the middle, where they shouldn’t be,” Gerber said. Some fear that puts lawyers in the same situation as psychotherapists. The state Supreme Court ruled in 1976 that they are required to warn about dangerous patients. But Mohr argues that since disclosure by lawyers will be discretionary, not mandatory, that eliminates any argument that there was a duty to warn. “You’re kind of leaving it up to the lawyer,” he said, “in deciding when someone is blowing off steam and when they are serious.” Mohr also notes that the law says that before spilling the beans on a potentially dangerous client, attorneys must make a “good faith effort” to persuade the person not to commit a crime or must make it known that their threats could be made public. Gerber and others, however, say the latter requirement could cause major problems, particularly for criminal defense attorneys. At what point, they ask, do you advise a criminal defendant that some of the things he or she says might not be kept confidential? “We don’t just advocate for clients. We counsel them,” Gerber said. “And, if under certain circumstances we are required or even have the option to disclose, it makes us far less effective counselors.”

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