Wednesday, July 18, 2001
Government Lawyer Not Obliged to Blow Whistle on Client
By a MetNews Staff Writer
“Whistleblower” statutes that encourage state employees to flag official waste, fraud and law-breaking do not supersede laws that protect client information from disclosure by lawyers, state Attorney General Bill Lockyer said in an opinion released yesterday.
In an opinion that directly impacts the work of Lockyer’s legal staff and the hundreds of other attorneys employed by the State of California and local governments and agencies, the attorney general said the attorney-client privilege is not trumped by three acts collectively known as the whistleblower laws.
“[I[t is well established that a statute should be construed in light of constitutional constraints,” Deputy Attorney General Anthony S. Da Vigo wrote for Lockyer. “Here, a contrary conclusion would invite constitutional scrutiny which the Legislature, in our view, did not envision. Specifically, the power to regulate the practice of law has been recognized to be among the inherent powers of the courts; the courts are vested with the exclusive power to control the admission, discipline, and disbarment of persons entitled to practice before them.”
‘Exclusive Judicial Concern’
If the California Whistleblower Protection Act, the Whistleblower Protection Act and the Local Government Disclosure of Information Act were interpreted to preclude disciplining lawyers for breaching the attorney-client privilege, an area of “exclusive judicial concern” would be improperly usurped by the Legislature, Lockyer said.
Lockyer also noted that the whistleblower statutes themselves seem to indicate that the attorney-client privilege was not to be infringed.
“Hence, a public officer or employee of a state agency may insist upon and enforce the right and privilege attached to attorney-client confidences” under the CWPA, he said.
Other statutory language couches the encouragement to disclose waste or corruption “to the extent not expressly prohibited by law,” he noted.
The opinion was requested by Assemblyman Darrell Steinberg, a Democrat representing the Sacramento area. Calls to his office to determine the genesis of the query were not immediately returned.
No Particular Concern
Lockyer noted in the opinion that the request did not flag a particular concern or focus on particular public agency lawyers.
“In any event, it would be impossible to consider all the factors that might attend the public interest or examine all unique features of public practice,” he said.
As in many issues surrounding the duties of public attorneys, the threshold question in the opinion was identifying the client for purposes of the attorney-client privilege, since the privilege protects the secrets of the client and imposes the duty on the lawyer.
California State Bar Rules of Professional Conduct 3-600 appears designed to answer that question for private associations better than it does for government lawyers, Lockyer said. The rule makes it clear that the lawyer’s client is the organization, not its employees or board members.
For government lawyers, conflict between the representation of the people through their elected officials and representation of the officials themselves must be resolved by the officials getting separate counsel, he said.
To a separate but related question posed by Steinberg, Lockyer said the attorney-client privilege for government lawyers also takes precedence over duties to disclose in false claims actions, communications with the Legislature, and filing of complaints or claims pertaining to rights of government employees.
Copyright 2001, Metropolitan News Company