Confidentiality and Its Exceptions (California vs. ABA)

A precise essay begins by separating two concepts that students constantly blur. The attorney-client privilege is a rule of EVIDENCE (in California, Evidence Code sections 950 and following) that protects confidential communications between lawyer and client made for the purpose of obtaining legal advice from compelled disclosure in a legal proceeding.

The ethical duty of confidentiality is far BROADER: it is a professional obligation that bars the lawyer from voluntarily revealing ANY information relating to the representation, regardless of source, whether or not it would be privileged, and whether or not its disclosure would harm the client. Information a lawyer learns from a third party, from public records, or from independent investigation can fall outside the privilege yet remain protected by the confidentiality duty.

The privilege is asserted to resist a subpoena or discovery demand; the confidentiality duty governs the lawyer's everyday speech, gossip, marketing, and choice of what to put in a brief. California Business & Professions Code section 6068(e)(1) states the duty in the most emphatic terms used by any jurisdiction: a lawyer has a duty 'to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.' California Rule 1.6 implements that statutory command.

Because the statute uses the phrase 'at every peril,' California treats confidentiality as a near-absolute obligation, subject to only one narrow carve-out, discussed below.

California recognizes exactly ONE discretionary exception to the duty of confidentiality. Business & Professions Code section 6068(e)(2) and California Rule 1.6(b) PERMIT — they do not require — a lawyer to reveal confidential information to the extent 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. Three features deserve emphasis. First, the exception is permissive: even when the standard is met, the lawyer MAY but need not disclose, and a lawyer who chooses silence does not violate the rule.

Second, the harm must be physical — death or substantial bodily harm — not financial; there is no California exception for preventing a client's fraud, embezzlement, or other purely economic crime, no matter how large the loss to victims. Third, before disclosing, the lawyer must, IF REASONABLE under the circumstances, make a good-faith effort to persuade the client not to commit or to continue the criminal act, and must inform the client of the lawyer's ability or decision to reveal the information, unless doing so would itself increase the risk to the threatened person.

When disclosure is made, it must be no greater than the lawyer reasonably believes necessary to prevent the harm. This is dramatically narrower than the Model Rule, and a California essay that imports the Model Rule's broader exceptions will be marked wrong.

ABA Model Rule 1.6(b) contains a much longer menu of permissive exceptions, every one of which you should be able to recite and then explicitly REJECT for California where California has no counterpart.

Under the Model Rule a lawyer MAY reveal confidential information to the extent reasonably necessary: (1) to prevent reasonably certain death or substantial bodily harm — note 'reasonably certain,' and note the Model Rule does NOT require a criminal act, so a lawyer may warn of a non-criminal hazard the client created; (2) to prevent the client from committing a crime or fraud reasonably certain to cause substantial financial injury to another and in furtherance of which the client has used or is using the lawyer's services;

(3) to prevent, mitigate, or rectify such financial injury that has already occurred and in which the lawyer's services were used; (4) to secure legal advice about the lawyer's compliance with the rules; (5) to establish a claim or defense in a controversy between the lawyer and client, to defend against a charge or civil claim based on the client's conduct, or to respond to allegations concerning the representation (the self-defense exception); (6) to comply with other law or a court order; and (7) to detect and resolve conflicts of interest arising from the lawyer's change of employment or a change in firm composition.

California shares only the life-safety idea (and even that more narrowly, requiring a criminal act and the dissuasion/notice steps) and the ability to comply with a court order. California does NOT have the financial crime-fraud exceptions, does not have a broad self-defense exception of the Model Rule's scope, and does not have the conflicts-detection exception. On a California essay, when a client has used the lawyer's services to commit a financial fraud, the disciplined answer is that California confidentiality FORBIDS voluntary disclosure even though the Model Rule would permit it — a stark, testable divergence.

Beyond the question of when a lawyer may speak, both systems impose affirmative duties to guard client information. California Rule 1.6(c) and ABA Model Rule 1.6(c) require a lawyer to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information protected by the duty. This is where technological competence and confidentiality intersect: a lawyer must take reasonable measures to secure electronic files, email, cloud storage, and mobile devices, and to supervise nonlawyer staff and vendors (linking to Rules 5.1 and 5.3) so that confidences are not leaked.

The confidentiality duty survives the end of the representation and even the death of the client. It binds not only the lawyer but the lawyer's entire firm and is imputed to associated lawyers. The duty also informs the handling of metadata, the inadvertent transmission of privileged documents, and the receipt of an opposing party's confidential materials. In California, a lawyer who receives materials that appear on their face to be privileged and obviously produced by mistake must refrain from examining them more than necessary to determine that they are privileged and must notify the sender (the State Fund rule).

Finally, the duty of confidentiality interacts with informed consent throughout the rules: a client may authorize disclosure, and a lawyer is impliedly authorized to make disclosures reasonably necessary to carry out the representation. But absent client consent, implied authorization, or the single life-safety exception, the California lawyer's default — backed by section 6068(e)'s 'at every peril' language — is silence.

Confidentiality Exceptions: California vs. ABA Model Rule 1.6(b)

Exam Hooks

• § 6068(e)(1): preserve client secrets 'at every peril' — strictest in the nation.
• CA's sole exception = prevent CRIMINAL act likely to cause death/substantial bodily harm, permissive, after dissuasion + notice.
• CA has NO financial crime-fraud, broad self-defense, or legal-advice exception — do not import the Model Rule menu.
• Confidentiality (all info relating to representation) is broader than the evidentiary privilege.