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How do the strict California confidentiality rules interact with the attorney-client privilege exception that allows a lawyer to be compelled to testify about a client's use of the lawyer's services to further a crime or fraud?

• For example, if a client asked a CA lawyer to help him commit securities fraud, and the client was later caught committing that fraud, an exception to attorney-client privilege permits a court to compel the lawyer to testify about that incident.  The confidentiality ethics rules say, however, that the lawyer cannot breach confidentiality unless it's to prevent a future crime that he reasonably believes is likely to result in death or substantial bodily harm. It seems that, in this situation, the lawyer has a choice between breaking the law by refusing to testify (or lying under oath), or breaking the confidentiality rules by testifying.  Am I missing something here?  How is this discrepancy resolved?

• Answer:

  Note: I'm not a CA lawyer, but I have looked over the RPCs and know a little bit about general ethical considerations - feel free to correct anything that I'm missing here, if you have better information. The only exception that CA allows under their Rules of Professional Conduct for the disclosure of attorney/client privileged information is that of preventing a future crime involving death or substantial bodily harm.  Even then, that exception is not a mandate, it's a "may disclose". CA RPC Rule 3-100. Confidential Information of a Client (A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule. (B) A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. (C) Before revealing confidential information to prevent a criminal act as provided in paragraph (B), a member 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 member’s ability or decision to reveal information as provided in paragraph (B). (D) In revealing confidential information as provided in paragraph (B), the member’s disclosure must be no more than is necessary to prevent the criminal act, given the information known to the member at the time of the disclosure. (E) A member who does not reveal information permitted by paragraph (B) does not violate this rule. If an attorney is called to testify in court, he or she can assert the attorney/client privilege to avoid answering the question.  This can be waived by the client (privilege is "owned" by the client, not the attorney), however, and if it is then the attorney would be required to answer the question (barring some other legal objection, such as a 5th Amendment right against self-incrimination). All of that having been said, the Crime/Fraud exception nullifies the existence of the privilege entirely - it's the "nuclear option" that the court can use to compel testimony of a lawyer whose services were used to commit a crime or a fraud.  As such, the information that would need to be disclosed would not be privileged, and would not fall under RPC 3-100.  This would require a judicial decision that the Crime/Fraud exception applies, not just an assertion by one party or another that it does. It should also be noted that the attorney doesn't even have to know that their advice was used in furtherance of the Crime/Fraud for the exception to apply - it's simply enough that the defendant/client in the matter used even innocuous-sounding advice to commit their Crime/Fraud.  The Crime/Fraud must have actually been committed, however, and not just planned or conceived of, for the exception to be triggered.This answer is not a substitute for professional legal advice....