Ethics Opinon 1990-1

I
QUESTION PRESENTED

Attorney represents a Client in a criminal proceeding. During a meeting between Attorney and Client in Attorney's office, Attorney discloses to Client that a codefendant has agreed to cooperate with the prosecution and provide information which will incriminate Client.

Upon learning of the foregoing, Client becomes enraged. Client opens a brief case, displays a handgun and tells Attorney: "I've had it with that lying scum. I know how to use this and I'm going to take care of him once and for all." Client hurriedly departs Attorney's office.

Based upon Attorney's knowledge of Client, Attorney believes that Client intends to seriously injure or kill the informant.

May Attorney disclose Client's intentions or otherwise warn the authorities or informant of the apparent danger?

SUMMARY

Despite the obvious moral dilemma presented to the attorney in the foregoing scenario, California law (including Section 6068(e) of the Business and Professions Code) forbids the attorney from disclosing any information obtained in confidence from the client. No implied common law duties or rules of professional conduct promulgated in other jurisdictions apply to allow even a limited disclosure.

DISCUSSION

Historically, the maintenance of client confidences has been one of the highest duties of an attorney. Society originally derived this duty, in part, from Roman law, see Redin, The Privilege of Confidential Communications Between Lawyer and Client, 16 Cal.L.Rev. 487, 488 (1928), and carried it forward through common law and legislative promulgation.

In California, two independent legislative schemes establish the duty to maintain client confidences. First, Section 6068(e) of the Business and Professions Act provides:

It is the duty of an attorney to do all the following:

. . .

(e) to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

A related codification of this duty can be found in the statutes relating to the attorney-client privilege collected in the Evidence Code. Specifically, Section 954 (1) provides:

Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege . . . .

The only arguably relevant exception to the Evidence Code provisions dealing with the attorney-client privilege is Section 956, the so-called "crime-fraud" exception. This section provides:

There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.

Many judicial and ethics committee opinions have made clear the attorney's duty to maintain confidential all client disclosures of past crimes and frauds. Considering the foregoing legislative scheme, we believe that the attorney's duty also extends to protect confidential disclosures of an intent to commit future crimes and frauds, even those encompassing threats of great bodily injury or death.

The California Legislature has expressed a clear and unequivocal statement of the attorney's duty to maintain client confidences and secrets. Only in the narrow exception provided by Section 956 may an attorney disclose a confidence if the client sought or obtained the services of the attorney in order to help in the commission of a crime or fraud. In all other circumstances, the attorney must maintain the secrets and confidences of the client.

We recognize the seemingly harsh consequences of our opinion, particularly in light of the contrary standard espoused by Rule 1.6 of the ABA Model Rules of Professional Responsibility ("Model Rules"). (2) In most circumstances, we look favorably to the Model Rules for guidance on issues of ethical conduct in California. However, in this instance, the legislative history of the Rules of Professional Conduct precludes us from relying upon the Model Rules.

Indeed, were the California Rules of Professional Conduct and the relevant statutory authorities silent on this subject, we would be inclined to suggest that Rule 1.6 of the Model Rules provides at least persuasive guidance for California attorneys. Unfortunately, that is not the case. No exception to the duty imposed by Section 6068(e) of the Business and Professions Code or the attorney-client privilege established by Section 964 of the Evidence Code exists which would render the Model Rules relevant in this circumstance. And, most importantly, as indicated below, the legislative history of the current Rules of Professional Conduct suggests that the California Supreme Court has apparently rejected the rationale of Rule 1.6. (3)

We also recognize that some commentators advocate a common law duty of attorneys to disclose confidential communications in the context recognized by the California Supreme Court in Tarasoff v. Board of Regents, 17 Cal.3d 425 (1976). However, as to this argument as well, we believe that the legislative scheme applicable to the attorney-client privilege completely preempts the field upon which the court recognized the "Tarasoff duty to warn" for psychotherapists.

In Tarasoff, a psychiatric patient of the defendant killed plaintiffs' daughter. Plaintiff filed a complaint alleging, in part, that the perpetrator's psychiatrist was liable for failing to warn plaintiffs and the victim of the perpetrator's intent to kill. The California Supreme Court held that when a psychotherapist determines, or reasonably should determine, that a patient presents a serious danger of violence to others, the therapist must use reasonable care to protect the intended victim by warnings or other appropriate conduct.

Germane to the specific question about a common law duty to disclose confidential attorney-client communications is the defendant psychotherapists' argument in Tarasoff that the psychotherapist-patient privilege established by Section 1014 of the Evidence Code precluded disclosure of confidential communications, even those expressing intentions to commit violence. In response, California Supreme Court looked to Evidence Code Section 1024 to find an express exception to this psychotherapist-patient privilege where:

The psychotherapist has reasonable cause to believe that the patient in such mental or emotional condition as to be dangerous to himself or to the person or property of another and that disclosure of the communication is necessary to prevent the threat and danger.

As such, the Court dismissed the arguments of privilege applicable to the psychotherapist-patient relationship and analyzed the psychotherapist's duty based on general tort law principles.

However, the analysis applied by the California Supreme Court in Tarasoff is unavailable in the attorney-client relationship. The Evidence Code codifies both the attorney-client and psychotherapist-patient privileges. See Evidence Code §§ 954; 1014. However, Section 1024 also codifies the "Tarasoff-exception" to the psychotherapist privilege. Thus, the existence of the legislature's express exception to the psychotherapist-patient privilege stands in contrast to the absence of a similar exception to the attorney-client privilege. As such, no matter how morally appealing the rationale of the Tarasoff opinion may be, the dictates of the Legislature as announced in Section 6068(e) of the Business and Professions Code and Section 954 of the Evidence Code preclude us from recognizing any exception.

In the recent case of People v. Clark, 50 Cal.3d 583 (1990), the California Supreme Court reaffirmed is difference between the psychotherapist-patient privilege and the attorney-client privilege. In that process, the Court clearly stated its view that no exception exists within the attorney-client privilege which allows for the disclosure of confidential threats to harm third parties.

Clark concerned an appeal from a death penalty case. At trial, the defense attorney retained a psychologist to examine his defendant-client for purposes of the penalty phase of the proceeding. During the psychiatrist's examination, the defendant-client stated his intention to inflict serious injury on several third parties. At trial, the psychiatrist testified about the threats of physical violence. After conviction, the defendant appealed, in part, on the ground that the psychiatrist's disclosure of his threats violated the psychotherapist-patient and attorney-client privilege.

In affirming the conviction, the court first distinguished and rejected the application of the psychotherapist-patient privilege. However, concerning the attorney-client privilege, the Supreme Court held that the trial court improperly admitted the testimony in violation of the privilege. Although the court nonetheless held that the error was harmless, its discussion of the privilege and the grounds asserted by the prosecution for disclosure directly bear upon this opinion.

Specifically, the prosecution argued that the defendant's statements of intent to harm third parties constituted threats to commit future criminal conduct. As such, the prosecution argued, they fell within the "crime-fraud" exception. However, the Supreme Court rejected any notion that Section 956 provided any exception to the attorney-client privilege for mere statements of intent to commit a crime, absent the client's intent to seek legal advice to further the criminal purpose. Clark, 50 Cal. 3d at 621-23. Thus, the analysis in Clark makes clear that a client's threats to inflict serious bodily harm or death to third parties, without more, provide no exception to the attorney-client privilege.

In summary, under the circumstances of this case, the laws of the State of California and the Rules of Professional Conduct applicable to California attorneys leave no discretion for disclosure or other warning of a client's intent to inflict serious bodily harm or death upon another person. Though we are mindful of the moral and societal arguments which favor a limited exception similar to that recognized by the California Supreme Court in Tarasoff, we believe that the law and regulations applicable to attorneys, unlike those applicable to psychotherapists, do not allow for disclosure.

Thus, an attorney is certainly under no obligation to disclose or otherwise warn of a client's intent. Indeed, the attorney may not, under any circumstance, disclose such confidences. We believe -- as the California Supreme Court apparently does as well -- that any exception to this standard is one that must be created by the Legislature.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees or the San Diego County Bar Association, its agents, employees or members.

1. Unless otherwise indicated, all references are to the Evidence Code.
   
   
2. Rule 1.6 of the ABA Model Rules, entitled "Confidentiality of Information," provides:

   (a) A lawyer shall not reveal information relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation, and except as stated in paragraph (b).

   (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary:

   (1) To prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm; or

   (2) To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.

   The official comment to Rule 1.6 provides some guidance to the intent of this rule:

   The lawyer may learn that a client intends prospective conduct that is criminal and likely to result in imminent death or substantial bodily harm. . . . [T]he lawyer has professional discretion to reveal information in order to prevent such consequences. The lawyer may make a disclosure in order to prevent homicide or serious bodily injury which the lawyer reasonably believes is intended by client. It is very difficult for a lawyer to "know" when such a heinous purpose will actually be carried out, for the client may have a change of mind.

   . . . A lawyer's decision not to take preventive action permitted by paragraph (b)(1) does not violate this Rule.

3. Specifically, in the proceedings which culminated in the presentation of currently effective Rules of Professional Conduct to the California Supreme Court in December 1987, the original proposal contained a proposed rule, 3-100, which was derived from and substantively identical to Model Rule 1.6. As proposed, Rule 3-100 stated:
   3-100: DUTY TO MAINTAIN CLIENT CONFIDENCES AND SECRETS INVIOLATE

   (A) It is the duty of a member to maintain inviolate the confidence, and, at every peril to himself or herself, to preserve the secrets of a client or former client.
   . . .

   (C) A member may reveal a confidence or secret:
   . . .

   (3) To the extent the member reasonably believes necessary:

   (a) to prevent the commission of a criminal act that the member believes is likely to result in death of substantial bodily harm. . . .

   After the proposed rules were submitted to the Supreme Court, the Court forwarded a letter to the State Bar which specifically questioned the authority of the Court to promulgate a rule of professional conduct--and particularly Proposed Rule 3-100(C)--which contravened the duty expressed in Business and Professions Code section 6068(e). Letter of the Honorable Laurence P. Gill. Clerk of the Supreme Court, to Terry Anderlini, President, State Bar of California, dated June 9, 1988 ("Where the legislature has codified, and revised, or supplanted privileges previously available at common law, does the court have inherent authority to modify this statutory privilege. In response to the Supreme Court's concerns, the State Bar withdrew Proposed Rule 3-100.

   Thus, we believe that the California Supreme Court's question concerning and failure to adopt Proposed Rule 3-100 provides unmistakable evidence of the Supreme Court's view on the subject of attorney disclosures of confidential communications concerning future frauds or crimes.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.