NOTES ON THE LAW: CONFIDENTIALITY

The rule of confidentiality is essential to our legal system. It protects an individual’s right to consult with an attorney at law and to know that their attorney will keep the substance of those communications confidential.

Confidentiality rules begin with the attorney/client privilege set forth in the Evidence Code, California Rules of Professional Conduct and California Business & Professions Code. Evidence Code Section 952 states that “confidential communications between client and lawyer” means:

Information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

All California lawyers have a duty to keep client/attorney communications confidential (California Rules of Professional Conduct 3-100, California Business & Professions Code 6068(e)).

The duty to maintain client confidences extends beyond “confidential communications” and may include client confidences or secrets learned by observation or investigation done in connection with representation of the client. Business and Professions Code Section 6068(e)(1) provides:

“It is the duty of an attorney
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(e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

The attorney/client privilege belongs solely to the client (California Evidence Code 953 & 954). Only the client may waive the privilege and allow her attorney to disclose communications between them (California Evidence Code 955).

Historically in California, the attorney/client privilege was virtually absolute while the client was alive (except for disputes between the client and attorney). (California Business & Professions Code 6068(e), California Evidence Code 965 et seq.) However, California has recently recognized a limited exception in situations where the client communicates to her lawyer a present intention to commit a felony involving serious bodily harm or death to another person. Even under these circumstances, the attorney is required to attempt to persuade the client to not commit the felony and is permitted to disclose to law enforcement only so much of the confidential communication as is necessary to prevent the commission of the felony. Business and Professions Code Section 6068(e)(2) provides:

(e)(2) Notwithstanding paragraph (1), an attorney may, but is not required to [emphasis added], reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”

The Evidence Code provides further limited exceptions. Generally, there will be no privilege for a deceased client’s communications with her lawyer when all litigants present a claim through that deceased client or concerning a dispute about the decedent’s intention or competence. (California Evidence Code 957, 959, 960, 961.)

An attorney who fails to observe these limitations places herself at risk of disclosing confidential communications. (California Rules of Professional Conduct 3-100(B), (C) & (D), California Evidence Code 956-965). However, the failure of an attorney to reveal confidential information does not violate the Rules of Professional Conduct. ((California Rules of Professional Conduct 3-100(E)

To protect client confidences, an attorney must be discreet and circumspect. When in doubt, do not reveal client confidential information.