Ethics Hotline for California Lawyers

Attorney Mark Taxy

March April 2003
Photos and text by Richard Bermack

Imagine an attorney learns that his client is about to kill a witness and then intends to kill the attorney as well. Does the attorney’s professional code of ethics allow him to breach his client’s confidentiality? Would the attorney be in violation if he called the police? What does he do?

The State Bar of California has an ethics hotline for lawyers to answer those and other legal ethics questions. “The hotline staff will refer them to the appropriate rules and regulations,” says Mark Taxy, a staff attorney in the State Bar’s Office of Professional Competence. “For example, the California Business and Professions Code states that an attorney 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.” The hotline staff cannot give legal advice or interpretations of the law, Taxy stresses. “We’ll tell them, here are some codes, statutes, advisory ethics opinions, and court decisions you might want to look at that are relevant to your question and may provide guidance to help resolve your ethical dilemma.”

California has very strict confidentiality laws for attorneys which are intended to foster and preserve the attorney-client relationship. There is nothing like the Tarasoff ruling, which obligates therapists to report to the police any credible threats patients make to physically harm themselves or others. An attorney’s duty of confidentiality is related to, but should not to be confused with, attorney-client privilege, which prevents communications between an attorney and a client from being disclosed in a court proceeding. Under certain circumstances, either the attorney or the client may be compelled to testify. However, that does not mean the attorneys can call the newspaper or tell their friends at a cocktail party what they know, according to Taxy.

“We help attorneys understand how to conform to their professional responsibilities and ethical duties so that they understand what to do to avoid an encounter with the State Bar discipline department or being sued by their clients. While attorneys often know exactly what they are doing in an area of specialization, they might run into problems understanding their ethical duties. Sometimes a simple answer can prevent costly litigation,” Taxy states with pride. The Bar not only saves lawyers a lot of heartbreak and expenses, but also helps protect clients and the public.

The hotline averages 75 to 100 calls a day. Most don’t involve criminal cases. They typically concern fees, advertising, and conflicts of interest, in addition to maintaining client confidence and secrets.

Ethics is an evolving field, especially with all the crises in the business world. Under the rules of professional conduct, an attorney employed by an organization such as a corporation or government agency represents the organization, not its directors, officers and executive managers. “Just identifying who is the client can get confusing if the corporate lawyer deals directly with the chairman of the board or president of the organization,” Taxy pointed out.

While the states have historically had exclusive jurisdiction to regulate lawyers, in response to the Enron, WorldCom, and other corporate scandals, the federal government is trying to tighten regulations for lawyers who represent publicly-traded companies. A recently enacted corporate responsibility act requires lawyers who find improprieties within a corporation first to go up the corporate ladder to attempt to rectify the situation. If that does not work, they must withdraw from representing the company. The Securities and Exchange Commission wants them not only to quit, but to do it in a “noisy” way.

Proposed rules would require corporate lawyers to notify the SEC that they are withdrawing representation because of professional considerations. They are not to disclose the nature of the improprieties, however, which could tread on attorney-client confidentiality. “Corporate lawyers could find themselves becoming federal investigators and whistle blowers, which could put them at odds with their ability to follow the ethical rules,” Taxy warned.

The federal regulations are another attempt at balancing professional ethics and morality. Concepts of legal ethics develop into the professional standards which allow the attorney-client relationship to function. Morality is more philosophical and is about doing what is right in the world. “Sometimes morality trumps professional ethics, sometimes it’s the other way around. One thing is for sure: it makes for interesting and intellectually challenging work,” Taxy says.

So what about the attorney who learns his client is about to kill someone, or who learns where a three- year-old kidnap victim is hidden? How do they deal with the ethical and personal conflict? “Lawyers are pretty intelligent people and they can figure out what is right. Everyone has to ultimately answer to their own conscience,” Mark Taxy replies.

Legislation has been introduced to the state assembly to make an exception to the attorney’s duty to maintain client confidentiality that would have an effect similar to the Tarasoff ruling for therapists. Another bill would impose obligations on corporations, their accountants, and corporate attorneys similar to the “noisy withdrawal” provisions of the federal regulations.

The Ethics Hotline is not for filing complaints. It is a research service for attorneys. Members of the public wishing to file a complaint about an attorney can call the State Bar’s complaint line at 800 843-9053. Information about the State Bar is available at www.calbar.ca.gov.