PLEASE NOTE: Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Governors of the materials published.

SUBJECT

Proposed Formal Opinion Interim No. 06­-0004 (Confidential Information and Unsolicited E-Mail Correspondence)

BACKGROUND

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) of the State Bar Board Book the Committee shall publish proposed formal opinions for a public comment period of no less than 60 days.

DISCUSSION/PROPOSAL

Proposed Formal Opinion Interim No. 06­-0004 considers if an attorney receives from a non-party a confidential communication between opposing counsel and opposing counsel’s client, what should the attorney do if the attorney reasonably believes that the communication may not be privileged because of the crime-fraud exception to the attorney-client privilege?

The opinion interprets rules 3-500, 3-700(C)(1)(e) of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code sections 6068; and Evidence Code sections 915, 952, and 956.

The opinion digest states: If an attorney receives a confidential written communication between opposing counsel and opposing counsel’s client under circumstances reasonably suggesting that the crime-fraud exception precludes application of the attorney-client privilege, the attorney may ethically read the communication. However, the attorney must notify opposing counsel as soon as possible that the attorney has possession of the communication. The two attorneys should try to resolve the privilege issue or, if that fails, obtain the assistance of a court. Until the issue is resolved, the attorney may not disseminate or otherwise use the communication or its contents.

At its Oct. 31, 2009 meeting and in accordance with its Rules of Procedure (State Bar Board Book Tab 19, Art. 2, Sec. 6(g)), the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 06­-004 for a 90-­day public comment distribution. Subsequently, at its Jan. 14, 2011 meeting, COPRAC revised the opinion in response to the public comments received and, in further accordance with its Rules of Procedure, tentatively approved Formal Opinion Interim No. 06-0004 for an additional 60-day public comment distribution.

ANY KNOWN FISCAL/PERSONNEL IMPACT

None.

ATTACHMENTS
SOURCE

State Bar Standing Committee on Professional Responsibility and Conduct

COMMENT DEADLINE

5 p.m., April 4, 2011

DIRECT COMMENTS TO:

Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
(415) 538-2116
(415) 538-2171 (Fax)
angela.marlaud@calbar.ca.gov