Tuesday, January 29, 2002
Board of Governors Approves First Whistleblower Guidelines for Public Lawyers
By NAZANIN AGANGE, Staff Writer
The State Bar Board of Governors has approved, for the first time, guidelines on how public lawyers should respond to governmental misconduct within their agencies.
The approved amendments, which still must be adopted by the California Supreme Court to take effect, provide a general course of action, distinguishing between serious and minor misconduct, for attorneys who are in the position to act as whistleblowers in corruption cases. The Board of Governors’ vote directs State Bar staff to prepare a report for the state high court recommending the adoption of the amendments.
Kevin Mohr, a professor at Western State University College of Law and vice chair the committee that presented the revisions to the board, said that under the current situation, “there was no clear guidance in the Rules of Professional Conduct for government lawyers on how to proceed when faced with official misconduct in government.”
The revision came as a response to Assembly Bill 363, introduced by Assemblyman Darrell Steinberg, D-Sacramento, last February. The bill was introduced in response to the Department of Insurance scandal that led to the resignation of Insurance Commissioner Charles Quackenbush and other officials. A department attorney, Cindy Ossias, reported what she said was the commissioner’s misuse of office. She testified, at the risk of losing her license to practice law, that she discovered Quackenbush had allowed some insurance companies to donate to private foundations he had created instead of facing penalties for alleged mishandling of claims.
Steinberg said he offered his bill to protect lawyers in Ossias’ position.
The bill would have carved out an exception to California’s statutory rule regarding attorney-client confidentiality, which is widely seen as creating one of the strictest confidentiality duties in the nation. It was amended to mandate instead the adoption of a rule on the subject by the Supreme Court after consideration by the Board of Governors.
Mohr said the committee’s concern was to provide guidelines for attorneys who suspect governmental misconduct, while “hoping to preserve the duty of confidentiality.” He deems that the revision “strikes a good balance.”
“[The amendments bear in mind] confidentiality, while at the same time providing guidance to lawyers to disclose, within the government, confidential information about their particular agency, providing an oversight function that should protect the public interest,” Mohr continued.
The proposed procedure provides distinctions between appropriate actions regarding minor wrongdoing as well as major transgression. In minor cases the public attorney is instructed to go up the chain of command within the specific agency, whereas in reporting major misconduct the attorney is allowed to inform the appropriate oversight or law enforcement agency.
“What it does is provide a clear roadmap as to what circumstances are severe and where [an attorney] can go,” Board of Governors member Ann Ravel said yesterday. “It’s the first rule specifically discussing some of the issues that face public attorneys. It gives guidance more than encouraging or discouraging them from coming forward [in misconduct cases].”
At the Board of Governors meeting Ravel called the revision “the best possible rule” because it acknowledges that public attorneys have a specific client, as any private practice lawyer would, and that they also serve the public.
Los Angeles County attorney Matthew Cavanaugh, a Board of Governors member, objected to the necessity of a revision to the State Bar’s Rules of Professional Conduct. He said he regards strict confidentiality legislation, which AB363 would have revised, as “straightjacket” to lawyers.
“I personally feel [the outcome] could have been better...we’re still bound by 6068-E [confidentiality duty]...the statute always outranks State Bar rules,” he said. While he voted for the amendment, had the confidentiality measure been loosened by the Legislature, Cavanaugh said, he feels that the public and California lawyers would be better served.
Former state Attorney General John Van de Kamp, a board member from Los Angeles, agreed that attorneys in whistleblower positions should be mindful of the public. But he said he saw the measure as “allowing a public lawyer to go through the right channels and to the appropriate [oversight] agency” without disturbing the practice of law.
Mohr said yesterday that he expected the State Bar report to be before California Supreme Court by mid February. State Bar staff member Randall Difuntorum said there were indications from the court that it would proceed within 60 days of receiving the report.
Copyright 2002, Metropolitan News Company