Tuesday, March 21, 2006
State Bar Board Opposes ‘Whistleblower’ Exception to Lawyer-Client Confidentiality Requirement
By a MetNews Staff Writer
The State Bar Board of Governors has voted to oppose legislation which would create an exception to an attorney’s duty of confidentiality for public lawyers faced with official misconduct.
Meeting in Los Angeles Saturday, the board voted 12-5 to go on record as opposing AB 1612, sponsored by Assemblywoman Fran Pavley, D-Woodland Hills. The board referred the matter for further study to a commission working on the revision of ethical rules for lawyers.
The board rejected an appeal from San Diego City Attorney Michael Aguirre for support for the measure, which he said could have led public lawyers to report a “pattern of unlawful behavior” there that continued for many years before coming to light and leaving the city’s finances in disarray.
But board member James Penrod, a San Francisco attorney, warned that “compliance with the law will suffer if the client believes the attorney is an agent of the prosecution and can’t be trusted.”
One advocate of the legislation is Department of Insurance attorney Cindy Ossias, who was fired after reporting misconduct by then-Insurance Commissioner Chuck Quackenbush. But Penrod noted that a State Bar investigation cleared Ossias of any ethical violation, and she eventually got her job back.
He said he was not convinced that the attorneys involved in the San Diego scandal could not have reported the misconduct without violating ethical rules.
Current rules permit a public attorney to report misconduct to the “highest authorized representative” of his or her employer, but do not specify to what extent that permits a lawyer to reveal confidences to those outside the agency in which the lawyer works.
Board member James Sharf, a San Jose lawyer, agreed with Penrod that the legislation in its current form creates too broad an exception to the confidentiality requirement of Business and Professions Code Sec. 6068(e), which states that it is “the duty of an attorney...to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”
Proposed amendments to the Rules of Professional Conduct developed by the State Bar in an effort to address the concerns raised by the Quackenbush situation were rejected by the state Supreme Court in 2002. The court said they conflicted with Sec. 6068(e).
The board has opposed versions of the bill proposed in prior years “subject to amendment,” in effect endorsing the concept but asking that changes be made to address various concerns, and Sharf urged his colleagues to take that route again.
“The underlying concept is sound,” he said.
But the motion to instead oppose the measure outright prevailed with only Sharf, Sacramento member Ruthe Ashley, San Francisco member Jeffrey L. Bleich, Los Angeles member John P. McNicholas and Santa Ana member Danni R. Murphy voting against it.
Similar bills were vetoed by then-Gov. Gray Davis and Gov. Arnold Schwarzenegger, but Aguirre told the board he expects the measure to become law this time.
Copyright 2006, Metropolitan News Company