Following is the 23rd post in a series from Parker Taylor Law Group about recent changes to the California Bar Association’s Rules of Professional Conduct (RPC). This rule is found in Chapter 1 – “Lawyer-Client Relationship” and focuses on a client’s confidential information. The Rule of Professional Conduct, as revised, is as follows:
Rule 1.6 Confidential Information of a Client
(a) A lawyer shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) unless the client gives informed consent, or the disclosure is permitted by paragraph (b) of this rule.
(b) A lawyer may, but is not required to, reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) to the extent that the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in death of, or substantial bodily harm to, an individual, as provided in paragraph (c).
(c) Before revealing information protected by Business and Professions Code section 6068, subdivision (e)(1) to prevent a criminal act as provided in paragraph (b), a lawyer shall, if reasonable under the circumstances:
(1) make a good faith effort to persuade the client: (i) not to commit or to continue the criminal act; or (ii) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm; or do both (i) and (ii); and
(2) inform the client, at an appropriate time, of the lawyer’s ability or decision to reveal information protected by Business and Professions Code section 6068, subdivision (e)(1) as provided in paragraph (b).
(d) In revealing information protected by Business and Professions Code section 6068, subdivision (e)(1) as provided in paragraph (b), the lawyer’s disclosure must be no more than is necessary to prevent the criminal act, given the information known to the lawyer at the time of the disclosure.
(e) A lawyer who does not reveal information permitted by paragraph (b) does not violate this rule.
The verbiage found in Rule 1.6, as set forth above, has not changed much from the corresponding rule in the CBA’s previous version of the RPC (Rule 3-100). However, a phrase was added to subdivisions (c), (c)(2), and (d) – “protected by Business and Professions Code section 6068, subdivision (e)(1)” – strengthening the guarantee of a client’s right to privacy as spelled out in this rule. A longer phrase referring to the same code was also added to subdivision (b). Now, instead of saying a lawyer is “not required to reveal confidential information …” (as the previous version did), Rule 1.6 states that a lawyer is not required to reveal “information protected by Business and Professions Code Section 6068, subdivision (e)(1) … .” Subdivision (b) also adds the phrase “as provided in paragraph (c)” at the end of the last sentence.
The verbiage in Rule 1.6 of the American Bar Association’s (ABA) RPC is quite different from the verbiage found in the CBA’s Rule 1.6. For example, subdivision (a) in ABA’s rule includes a phrase not found in CBA’s rule, describing one of the exceptions that permit a lawyer to reveal a client’s protected information as “the disclosure is impliedly authorized in order to carry out the representation.” Another difference is that ABA rule mentions “substantial injury to the financial interests or property of another.” No mention of “financial interests or property” is made in the CBA rule. Subdivision (d) of ABA’s Rule 1.6 (the last sentence of the rule) refers to a lawyer’s reasonable efforts to prevent inadvertent disclosure of information relating to their representation of a client. This phrase doesn’t appear at all in the CBA’s RPC.
Benefit: Generally speaking, this rule’s repeated emphasis on a client’s right to privacy under Bus. & Prof. Code § 6068, subd. (e)(1) should serve as a good reminder to all lawyers.
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Rules of Professional Conduct, California Bar Association, American Bar Association, Legal Malpractice, Client Rights, Legal Representation, Confidentiality, Parker Taylor Law Group, Port Parker