[9] A lawyer`s confidentiality obligations do not prevent a lawyer from seeking confidential legal advice on the lawyer`s personal responsibility to comply with these rules. In most cases, the disclosure of information to obtain such advice for the lawyer is implicitly authorized to perform the representation. Even if disclosure is not tacitly permitted, point 4 of paragraph b authorizes such disclosure because it is important for a lawyer to adhere to the rules of professional conduct. Lamer J. put the solicitor`s privilege test in Decoteaux v. Mierzwinski:[11] [2] Confidentiality between client and lawyer includes solicitor-client privilege, work product doctrine, and ethical standards of confidentiality. The principle of client-lawyer secrecy applies to representation information, regardless of the source, and includes matters that are communicated confidentially by the client and are therefore protected by solicitor-client privilege, matters protected by the labour product doctrine, and matters protected by ethical standards of confidentiality, all set out in law, rule and policy. (See In the Matter of Johnson (Rev. Dept.
2000) 4 Cal. State Bar Ct. Rptr. 179; Goldstein vs. Lees (1975) 46 Cal.App.3d 614, 621 [120 Cal. Rptr. 253].) The doctrine of solicitor-client privilege and work product applies in court proceedings and other proceedings where a member may be summoned as a witness or otherwise compelled to provide evidence against a client. A member`s ethical duty of confidentiality is not so limited in its scope of protection of the mandate-lawyer relationship of trust and prevents a member from disclosing the client`s confidential information, even if he or she does not face such a constraint. Therefore, a member may not disclose such information unless the client`s consent is obtained or authorized or required under state bar law, these rules, or other laws. [19] When transmitting a communication containing information about a client`s representation, counsel must take reasonable precautions to prevent the information from falling into the hands of unintended recipients.
However, this obligation does not require counsel to apply special security measures if the nature of the disclosure permits a reasonable expectation of privacy. However, special circumstances may warrant special precautions. Factors to consider in determining the appropriateness of the lawyer`s expectations of confidentiality include the sensitivity of the information and the extent to which the confidentiality of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to take special security measures that are not required under this rule, or the client may give consent to the use of a means of communication that would otherwise be prohibited under this rule. Whether an attorney may need to take additional steps to comply with other laws, such as state and federal laws that govern privacy, would be beyond the scope of those rules. The duty of confidentiality goes beyond a lawyer who ceases to act on behalf of a client. In the event of the death of a customer, the right to confidentiality passes to the personal representatives of the former customer. Solicitor-client privilege was originally a common law principle of proof, similar to hearsay, but has since been recognized as a constitutionally protected substantive rule.
This recognition began with R. v. Solosky (1979), in which Dickson J.A., as he recounted his history, considered it to be a “fundamental civil and legal right” that guaranteed clients a right to privacy in their communications with their lawyers, even outside a courtroom. [9] [3] Narrow exception to the duty of confidentiality under this rule. Despite the important public policies promoted by lawyers who adhere to the fundamental duty of confidentiality, the paramount value of life allows disclosures that are otherwise prohibited under article 6068 (e), paragraph (1) of the Business and Professions Code. Paragraph (B), which reformulates Article 6068, paragraph (e)(2) of the Business and Professional Code, identifies a narrow exception to confidentiality, without the Informed Consent of the Client, if a Member reasonably believes that disclosure is necessary to prevent a criminal act that the Member reasonably believes is likely to result in the death or significant bodily injury of a person. Section 956.5 of the Evidence Code, which refers to solicitor-client privilege in evidence, provides for a similar express exception. Although a Member is not permitted to disclose confidential information about a Customer`s past and completed criminal acts, the policy that promotes the preservation of human life that underlies this exemption from the obligation of secrecy and the privilege of evidence allows disclosure to prevent future or ongoing criminal activity.