That discussion was prompted by a recent posting by Lawrence A. Westaddressing whether attorneys may seek whistleblower awards from the SEC. My post focused on a California attorney’s statutory duty topreserve “at every peril” his or her client’s secrets. Cal. Bus. & Prof. Code § 6068(e). This statutory obligation is reinforced by Rule 3-100 of the California Rules of Professional Conduct which providesthat amembermust not reveal information protected from disclosure by Section 6068(e) without the informed consent of the client (with the same exception).

ing the firm to name the nearly 300 public company clients who had information accessed by the attackers. When negotiations over the response reached an impasse, the SEC sued in the U.S. District Court for the District of Columbia.The SEC alleges that disclosure is permitted under D.C. Rules of Professional Conduct 1.6:[Rule 1.6](a)(1) generally prevents an attorney from “knowingly . . . reveal[ing] a confidence or secret of the lawyer’s client.” However, if issued a subpoena, the recipient must comply notwithstanding Rule 1.6, absent some other valid objection. This is because Rule 1.6(e)(2)(a) provides an exception to the general rule, and permits the lawyer to “reveal client confidences or secrets” when “required by law or court order.If that is the case, the rules are very different here in California. The California State Bar Act famously enjoins lawyers "to 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)(1). Lawyers are only permitted to reveal client confidences and secrets "to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual". Cal. Bus. & Prof. Code § 6068(e)(2). This statutory mandate is included in Rule 1.6 of the California Rules of Professional Conduct. As Justice Shinn wrote in his concurring opinion inPeople v. Kor,277 P.2d 94, 100-101 (Cal. App. 1954):The privilege of confidential communications between client and attorney should be regarded as sacred. . . . Here the attorney was compelled to testify against his client under threat of punishment for contempt. . . . Defendant's attorney should have chosen to go to jail and take his chances of release by a higher court.Finally, Section 955 of the California Evidence Coderequires an attorney to claim the privilege whenever he or she is present when a privileged co

The California State Bar Act imposes a duty on attorneys to "support the Constitution and laws of the United States and of this state". Cal. Bus. & Prof. Code § 6068(a). Many California legislators are members of the California State Bar, including former state senator Hannah-Beth Jackson. Senator Jackson had been a member of the California bar for more than four decades when she introduced SB 826, a bill mandating minimum number of directors on boards of publicly traded companies. Even supporters of the law were aware that it was likely to be unconstitutional. As Governor Jerry Brown noted in his signing message:There have been numerous objections to this bill and serious legal concerns have been raised. I don't minimize the potential flaws that indeed may prove fatal to its ultimate implementation.Thus, it should have been a surprise to no one when Los Angeles Superior Court Judge Maureen Duffy-Lewis after a trial held that SB 826 violated the Equal Protection clause of the California Constitution (A person may not be . . . denied equal protection of the law"). Crest v. Padilla,L.A. Super. Ct. Case No. 19STCV27561 (March 13, 2022). SeeThe Verdict I

But a lawyer's obligation of confidentiality is not limited to just privileged communications, it extends to all of a client's "secrets". That is why California Business & Professions Code Section 6068(e) obligates an attorney to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client". This statutory obligation is repeated in Rule 1.6 of the California Rules of Professional Conduct.

For example, the Security and Exchange Commission’s Part 205 rules purport to immunize attorneys who disclose client confidences in certain circumstances. In California, the State Bar Act requires attorneys to "maintain inviolate the confidence[s], and at every peril . . . to preserve the secrets, of his or her client[s]. Cal. Bus. & Prof. Code § 6068(e).This obligation is independent of an attorney's obligations with respect to the attorney-client privilege as set forth in the Evidence Code (Sections 950-962) and the California Rules of Professional Conduct. Jim Fotenos, Steve Hazen, Jim Walther, Nancy Wojtas and I spilled a pot full of ink over this topic in thislaw review article.

The State Bar Act requires attorneys “[t]o maintain inviolate the confidence[s], and at every peril . . . to preserve the secrets, of his or her client[s].” [Cal. Bus. & Prof. Code § 6068(e)] Similarly, the Evidence Code requires an attorney to assert the attorney-client privilege whenever a party seeks disclosure of a privileged communication. [Cal.

While the state of California has not firmly decided the issue, the San Diego County Bar Association released an Opinion (2011-2), stating: represented “parties shouldn’t have ‘friends’ like that and no one – represented or not, party or non-party – should be misled into accepting such a friendship.” Specifically, when the motive is to obtain information about the litigation, the opinion states this can violate Cal. Rules of Prof. Conduct 2-100 and constitute deceptive conduct in violation of Cal. Bus. & Prof. Code Section 6068(d). Outside of California, other jurisdictions have found that even asking a third person, whose name a hostile witness will not recognize, to obtain social media information, is unethical, even if the person only states truthful information.

Nevertheless, the Committee stated that the rules of professional conduct set forth limits as to the actions that an attorney may take. Specifically, under California Business and Professions Code section 6068, an attorney may only pursue an end through truthful means. Additionally, under section 6106, any attorney who commits an act of moral turpitude or dishonesty may be subject to disbarment or suspension.

I certainly don’t take any issue with the SEC’s assertion that a California attorney owes a duty “To 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)(1). However, I do find it richly ironic that the SEC would make this claim in light of its explicit invitation to attorneys to violate client confidences in Rule 205.3(d)(2) and the possibility that an attorney who does so may be financially rewarded under the SEC’s whistleblower program.

For example, the Securities and Exchange Commission’s Part 205 rules purport to immunize attorneys who disclose client confidences in certain circumstances. In California, the State Bar Act requires attorneys to “maintain inviolate the confidence[s], and at every peril . . . to preserve the secrets, of his or her client[s]. Cal. Bus. & Prof. Code § 6068(e). This obligation is independent of an attorney’s obligations with respect to the attorney-client privilege as set forth in the Evidence Code (Sections 950-962) and the California Rules of Professional Conduct.