California's anachronistic confidentiality rule has become an issue in the Qualcomm discovery dispute. The two firms in the cross hairs want to disclose client information they believe will exculpate them and their lawyers. (Disclosure: Cal.Law reports that one of my old firms, Howard, Rice, represents Day, Casebeer as a firm.) California's Business & Professions Code §6068(e) forbids voluntary disclosure of client confidences or secrets. Unlike Model Rule 1.6(b)(5), California law does not qualify this provision to allow lawyers to disclose confidences or secrets to defend against allegations leveled at the lawyer.
The seemingly flat prohibition of Section 6068(e) has prompted the Heller firm to file this motion Download HellerSelfDefenseBrief.pdf asking the court to allow it to disclose client information. I have been researching the history of Section 6068(e) for some time. In my view, the court has the power to grant this motion and the facts justify the exercise of that power.
California courts have never applied section 6068(e) literally. They have
created exceptions to the statute when a lawyer seeks to establish the
scope of her authority, defend against disciplinary proceedings
initiated by the client, or a claim brought by a client, or to collect
a fee. The tradition of judicial exceptions to confidentiality predates
enactment of the Evidence Code in 1965. E.g. Security Loan & Trust Co. v. Estudillo, 134 Cal. 166 (1901)(considering attorney affidavit regarding authority based on privilege analysis without regard to predecessor statute to 6068(e).)
Arden v. State Bar, 52 Cal. 2d 310 (1959), involving a disciplinary proceeding initiated by a client, is representative of the California courts' approach: ""Whenever the disclosure of a communication, otherwise privileged, becomes necessary to the protection of the attorney's own rights, he is released from those obligations of secrecy which the law places upon him." (Thornton, Attorneys at Law, vol. I, § 127, p. 220; Canon 37, Canons of Professional Ethics of the American Bar Association.
Note that the Arden Court did not even cite 6068(e), nor California's evidence statute, which at that time was
part of the Code of Civil Procedure (a holdover from where David Dudley
Field put it in the draft NY code). The Court cited Thornton, a treatise on legal ethics, which
(as I recall) based its language on fairness concerns and the
attorney-client privilege.
California's Evidence Code §958 has one relevant qualification. It provides "[t]here is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship." California courts have construed this language as if it extended only to accusations made by lawyers against clients, or vice versa, e.g. Brockway v. State Bar, 53 Cal. 3d 51, 63-64 (1991), but the language does not have to be read that way. The breach could be of a duty to the court arising out of the attorney-client relationship.
It is tempting but wrong, I think, to try to read 6068(e) in light of the Evidence Code. The duty applies to all lawyers at all times; the Evidence Code is far more limited. In general, the duty governs voluntary disclosure while the Evidence Code and its exceptions govern compelled disclosure. As I recall it, nothing in the Law Revision Commission report recommending the Evidence Code evinced an intent to modify the duty of confidentiality.
One can draw a small inference from the history of the Evidence Code, however. California's original privilege law, codified in 1872 as Code of Civil Procedure §1881(2), stated "“An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment.” Note that this language does not require that the communication have been made in confidence, and the statute did not codify such things as the crime-fraud exception. Courts managed to impose the former and create the latter, notwithstanding the seemingly unqualified language. So it has been with Section 6068(e): Courts have rendered it sensible as circumstances have required.
Strictly speaking, the Qualcomm order to show cause does not compel
the lawyers involved to disclose information. It just gives them a
mighty incentive to do so. The relevant provision is therefore Section
6068(e), which governs voluntary disclosure, not the privilege, which
governs compelled disclosure. And the question is not, as the brief
puts it, whether Section 6068(e) applies. It does. It states the
general duty of a lawyer, and it applies to all California lawyers in
all their activities, not just those to which the privilege applies.
The real questions are: (1) Must that provision be read
literally? The answer is easy: No. California courts have never done that. (2) Is defending against an OSC
issued upon a finding of discovery misconduct a basis for
disclosure, and thus an exception to the literal language of the rule?
The answer is almost equally easy (the qualification is needed only
because the disciplinary cases creating such exceptions involved client
accusations): Yes. Fairness to counsel requires it, as does the substantial judicial interest in getting to the bottom of misconduct it has found. (And it seems probable that a client breach of duty is being alluded to, if not alleged; that is the simplest explanation for a failure of Qualcomm and counsel to agree on waiver.)
A final note, and the reason for this post, is that law students would benefit a great deal from an order making public the declarations filed in this case. Students learn best when they have a window into the very human side of practice, in which conflicts, miscommunications, and strategic behavior lead to mistakes or dishonest decisions. They can't really get that from reported opinions. They need to hear lawyers speak in their own voice (or, at least, the voice written for them by the counsel who drafted the declarations). Sunlight is not only the best disinfectant, it is vital for learning. I hope we get a lot of it.
DM