by Fred L. Wilks

The duty of confidentiality is clear enough on its face: a lawyer must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Cal. Bus. & Prof. Code § 6068(e) (Section 6068(e)). California Rule of Professional Conduct 1.6 (Rule 1.6) incorporates this duty by prohibiting lawyers from divulging information protected by Section 6068(e). Both the statute and the rule recognize an exception to the duty of confidentiality, allowing disclosure of client confidences to the extent necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death or substantial bodily harm. Rule 1.6 also makes explicit another exception to the duty of confidentiality: lawyers may disclose client information when the client gives “informed consent.” These are the only “codified” exceptions to the duty of confidentiality. The more interesting question is: what are the uncodified exceptions to the duty of confidentiality?

The Supreme Court of California has made clear that “[e]xcept in those rare instances when disclosure is explicitly permitted or mandated by an ethics code provision or statute, it is never the business of the lawyer to disclose publicly the secrets of the client.” Gen. Dynamics Corp. v. Super. Ct., 7 Cal. 4th 1164, 1190 (1994). Notwithstanding that assertion and the seemingly absolute language of Section 6068(e) and Rule 1.6, the comments to Rule 1.6 and the courts have recognized several additional exceptions to the duty of confidentiality.

One such exception can be found in the comments to Rule 1.6. Comment [2] recognizes an implicit exception to the duty of confidentiality, allowing disclosure as “authorized or required by the State Bar Act, these [Rules of Professional Conduct], or other law.” How this “exception” applies in practice is not always clear, and depends on the circumstances presented. For instance, when presented with the dilemma of a court order requiring a lawyer to disclose confidential documents, the State Bar’s Committee on Professional Responsibility and Conduct was unable to reach a conclusion whether it is acceptable to either disclose the confidential documents or violate the court’s order. See Cal. State Bar Formal Op. No.2015-192. What is clear is that a lawyer must exhaust all reasonable efforts to avoid either peril by, for instance, attempting to obtain client consent to disclosure or filing a writ petition challenging the order. Id.

Other than the express exceptions listed in Section 6068(e) and Rule 1.6, and the comments thereto, one must look to case law to understand the circumstances under which disclosure of client confidences is permitted.

Privilege Exceptions as Exceptions to the Duty of Confidentiality
Discussions surrounding the duty of confidentiality, especially within the context of litigation, often conflate the ethical duty of confidentiality with the attorney-client privilege. The attorney-client privilege is an evidentiary rule that grants clients the right to withhold disclosure, and prevent others from disclosing confidential communications between the client and the lawyer. See Cal. Evid. Code § 954. As Comment [3] to Rule 1.6 explains, “[t]he rule of client-lawyer confidentiality applies in situations other than those where evidence is sought from the lawyer through compulsion of law.” The privilege protects against compelled disclosure of only “communications,” a subset of the information protected by the duty of confidentiality which extends beyond the confines of the attorney-client privilege. See Cal. State Bar Formal Op. No. 2016-195. This broader duty encompasses any information obtained by the attorney during the professional relationship or pertaining to the representation, which the client has requested to be kept inviolate or whose disclosure might prove embarrassing or detrimental to the client. See Cal. State Bar Formal Op. No. 1993-133; In the Matter of Johnson, 4 Cal. State Bar Ct. Rptr. 179, 189 (Rev. Dept. 2000) (the duty of confidentiality applies to “facts and even allegations that might cause a client or a former client public embarrassment”). Information about the client that may not have been acquired through a confidential communication is subject to the duty of confidentiality. See Cal. State Bar Formal Op. No. 2016-195. The duty applies regardless of whether the facts are already part of the public record or if alternative sources of the information exist. See Cal. State Bar Formal Op. No. 2004-165.

There are no fewer than eight statutory exceptions to the attorney-client privilege. See Cal. Evid. Code §§ 956-962. However, no statute or rule of professional conduct explicitly states that these privilege exceptions generally apply to the duty of confidentiality such that lawyers are released from their duty of confidentiality, outside of the context of litigation, merely because one or more privilege exceptions applies.

At least one court has asserted that “the duty of confidentiality expressed in Business and Professions Code section 6068, subdivision (e) is modified by the exceptions to the attorney-client privilege contained in the Evidence Code.” Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 314 (2001); People v. Dang, 93 Cal. App. 4th 1293, 1298-99 (2001). This language should not be construed to mean that whenever a confidential communication is excepted from the attorney-client privilege a lawyer is automatically and absolutely released from the duty of confidentiality. Cases acknowledging the application of privilege exceptions to the duty of confidentiality should be understood as recognizing that, as an evidentiary matter, “confidential” matters may be discoverable and courts may order disclosure when a privilege exception applies.

For instance, a client may waive the attorney-client privilege by disclosing the substance of the attorney-client communication to a third party. However, even assuming such disclosure constitutes a waiver of the privilege, the client’s lawyer may not disclose the communication to others unless otherwise authorized or required by law, or with the client’s consent. Another example of a privilege exception that does not “modify” a lawyer’s duty of confidentiality is the crime-fraud exception to the attorney-client privilege. Lawyer-client communications are not privileged when the services of a lawyer are sought or obtained to aid the commission of a crime or fraud. See Cal. Evid. Code § 956. This privilege exception, however, is broader than the narrow “crime” exception expressed in both Section 6068(e) and Rule 1.6, which only allow disclosure of client confidences as necessary to prevent a criminal act likely to result in death or substantial bodily harm. As these examples demonstrate, privilege exceptions may, but do not automatically, relieve lawyers of their duty of confidentiality.

Comparison of California’s Rule 1.6 to ABA Model Rule 1.6
Examining the departure of California’s Rule 1.6 from ABA Model Rule of Professional Conduct 1.6 (ABA Rule 1.6) provides insight into the narrow exceptions to the duty of confidentiality in California. While California’s Rule 1.6 allows disclosure only with the client’s informed consent or to prevent a crime likely to result in death or substantial bodily harm, ABA Rule 1.6 establishes seven express exceptions.

The first three exceptions set forth in ABA Rule 1.6 essentially divide California’s exception for crimes likely to result in death or substantial bodily harm into separate exceptions. Together, these exceptions in ABA Rule 1.6 reflect a more permissive approach to lawyer disclosure of client confidences, highlighting the limited scope of California’s exception. For instance, subdivision (b)(1) of ABA Rule 1.6 permits a lawyer to disclose confidences to “prevent reasonably certain death or substantial bodily harm,” regardless of whether the circumstances leading to such harm constitute a crime. Meanwhile, subdivisions (b)(2) and (b)(3) of ABA Rule 1.6 allow disclosure of client confidences to prevent the client’s commission of a crime or fraud, or to prevent, mitigate or rectify any injury reasonably certain to result from a client’s criminal or fraudulent conduct. Unlike California’s Rule 1.6, these exceptions permit disclosure where the client’s fraud is non-criminal and they allow disclosure to prevent or mitigate “substantial injury to the financial interests or property of another,” regardless of the potential for death or bodily harm.

Subdivision (b)(4) of ABA Rule 1.6 allows a lawyer to disclose client confidences “to secure legal advice about the lawyer’s compliance” with the rules of professional conduct. California’s Rule 1.6 does not include an exception for such disclosures. However, there is authority supporting the notion that a California lawyer may disclose client confidences to obtain legal advice about the lawyer’s ethical obligations. See Chubb & Son v. Super. Ct., 228 Cal. App. 4th 1094, 1113 (2014) (permitting a lawyer to disclose client confidences to her own lawyer to equip her lawyer to “protect those confidences and to present any dispute to the court”); Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 312-13 (2001) (permitting a lawyer to disclose client confidences to her own lawyer to assist her in avoiding impermissible public disclosure). Neither Chubb nor Fox Searchlight Pictures approved of public disclosure of client confidences or admissibility in court. And although both decisions arose in a unique context—claims asserted by lawyers against their former employers—the State Bar’s Committee on Professional Responsibility and Conduct has embraced a broad view of a lawyer’s ability to disclose client confidences to his or her own lawyer to secure ethical advice. See Cal. State Bar Formal Op. No. 2019-197, n.9 (citing Chubb and Fox Searchlight Pictures with approval in the context of a lawyer seeking legal advice concerning the lawyer’s ethical obligations). Even in light of these authorities, client confidences that identify the client should be disclosed only to the extent necessary to secure legal advice.

Subdivision (b)(5) of ABA Rule 1.6 allows a lawyer to reveal client confidences in three situations: (1) “to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client,” (2) “to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved,” and (3) “to respond to allegations in any proceeding concerning the lawyer’s representation of the client.” California law addresses controversies to which a lawyer is a party in the Evidence Code, which provides that there is no privilege as to attorney-client communications “relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” Cal. Evid. Code § 958. Unlike ABA Rule 1.6, however, California’s privilege statute does not permit disclosures to defend against criminal or third party claims, nor does it broadly permit disclosures in any type of proceeding concerning a lawyer’s representation of a client.

Again, a statutory privilege exception does not automatically release lawyers from their duty to maintain client confidences. One must look beyond the codified rules, to case law, to find the rule that a lawyer may reveal client confidences when defending against a malpractice claim or in a fee dispute. See Dietz v. Meisenheimer & Herron, 177 Cal. App. 4th 771, 786 (2009). Courts have reasoned that an allegation of malpractice “necessarily waives all claims of confidentiality.” Smith, Smith & Kring v. Super. Ct. (Oliver), 60 Cal. App. 4th 573, 580 (1997). Stated differently in the language of Rule 1.6, courts effectively treat a client’s assertion of malpractice claims as providing “informed consent” to disclosure of relevant confidential information. Again, however, disclosure must be limited to information relevant to the issue of breach.

Conclusion
On their face, both the statute and the corresponding rule of professional conduct establishing the duty of confidentiality appear absolute. They lack express provisions for concepts such as implied waiver, disclosures otherwise required by law or court order, or disclosures for purpose of the lawyer seeking legal advice. However, despite the seemingly absolute nature of the duty, the comments to Rule 1.6 and the courts have recognized exceptions to the duty. Determining whether an uncodified exception to the duty of confidentiality applies in a particular context is not always an easy task. When in doubt, lawyers should proceed with caution before disclosing client confidences.

Fred L. Wilks is a business litigation partner at Hodel Wilks LLP in Irvine, California, and can be reached at FWilks@hodelwilks.com..