By James Fischer

Fischer is a Professor of Law at Southwestern Law School and a member of LACBA’s longstanding Professional Responsibility and Ethics Committee, which regularly provides ethics articles. The views expressed are her own.The views expressed in this article are solely those of the author and should not be attributed or imputed to any organization with which the author is, or has been, affiliated.

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The Relationship Between Several Provisions of the California and Model Rules of Professional Conduct

By James Fischer

James Fischer is a Professor of Law at Southwestern Law School and a member of the Los Angeles County Bar Association Professional Responsibility and Ethics Committee. The views expressed in this article are solely those of the author and should not be attributed or imputed to any organization with which the author is, or has been, affiliated.

Most lawyers are familiar with the ABA Model Rules of Professional Conduct (Model Rules). The Model Rules are the foundation of Legal Profession/Ethics courses in the United States. Yet, as lawyers know, or should know, the Rules that govern lawyer conduct in California are the California Rules of Professional Conduct (Cal Rules), which were adopted in 2018. The Cal Rules largely duplicate the Model Rules but there are some important differences in language which may or may not exist in fact. In this article I will discuss three of those differences and note when the differences are real and when they are not.

Confidentiality

Model Rule 1.6 provides that a lawyer may disclose client confidential information, which essentially is information the lawyer learns as a result of the representation, only if (1) the client provides informed consent, (2) the lawyer has implied authority to disclose, or (3) an exception in Rule 1.6(b) applies, of which there are seven. Cal Rule 1.6 is on the surface much more restrictive. Cal Rule 1.6 permits disclosure of client confidential information only if the client gives informed consent or the sole exception in Rule 1.6(b) applies, which allows disclosure to prevent death or substantial bodily injury resulting from a criminal act. In fact, the differences between Cal Rule 16 and Model Rule 1.6, while not negligible, are not as great as superficially appear.

Implied Authority

Cal Rule 1.6 does not contain the Model Rules implied authority exception. Under Model Rule 1.6 the implied authority exception applies when the lawyer reasonably believes disclosure would advance the achievement of the client aims and objectives of the representation. Disclosure is, however, restricted. First, the lawyer cannot disclose if the client has instructed the lawyer not to disclose. Second, the disclosure is reasonably necessary to accomplish the client’s objectives. ABA Formal Opinion 511 (May 8, 2024). Third, the disclosure is customary or inherent in the type of representation.  Id.; Model Rule 1.6 cmt. [5] (providing examples of  admissions of fact, settlement communications, as the type of disclosure that would normally fall within the implied authority exception. Fourth, the disclosure is no broader than needed to achieve the client’s objectives in the representation.

The apparent reason the implied authority exception was not added to Cal Rule 1.6 was the belief the exception would swallow the protection afforded by the Rule. That fear seems overstated. It has not appeared to be a problem in the  jurisdictions that have included the implied authority exception in their version of Rule 1.6, including New York, Texas, Florida, Illinois, Massachusetts, and Pennsylvania to name but a few. More importantly, the fear expressed ignores that the California’s confidentiality rule only applies to disclosures that are “harmful and embarrassing” to the client. COPRAC Formal Opinion No. 2022-1:

An attorney’s duty of confidentiality is a coor asre aspect of the attorney-client relationship. The duty, well recognized as a “very high and stringent one,” imposes on the attorney an obligation to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” (Bus. & Prof. Code, § 6068, subd. (e)(1); Flatt v. Super. Ct. (1994) 9 Cal.4th 275, 289.) “Secrets” in this context include “information obtained by the lawyer during the professional relationship, or relating to the representation, which the client has requested to be inviolate or the disclosure of which might be embarrassing or detrimental to the client.” (State Bar Formal Opns. 1993-133, 1988-96, 1986-87, 1981-58 and 1980-52; L.A. County Bar Ass’n Formal Opn. Nos. 386 (1980), 436 (1985), 452 (1988) and 498 (1999)

Id. at 2.[1]

There may have been some concern that an implied authority exception would be  untethered to the basic confidentiality rule and permit a lawyer to disclose information that was embarrassing or harmful to the client if the lawyer reasonably believed that disclosure would advance the client’s aims and objectives of the representation.[2] That is a legitimate concern but the solution is to tie implied authority to that limitation, not reject implied authority all together because of unstated concerns that such authority would be misused. Implied authority, cabined by the no harm, no embarrassment constraint, is fully consistent with a lawyer’s professional duties. One suspects lawyers recognize this. It would be incredibly expensive and needlessly time-consuming to secure client informed consent every time a lawyer thought that a disclosure of confidential information, not harmful or embarrassing to the client, would assist during settlement negotiations, witness interviewing, or examination of witnesses at trial. Under the current Cal Rules such disclosures are permissible as long as the client has not instructed the lawyer not to disclose or the disclosure is harmful or embarrassing to the client. Thus, while no implied authority exception expressly exists in Cal Rule 1.6, in fact California lawyers do have  authority to disclose non-embarrassing and non-harmful client confidential information when disclosure is customarily done as part of the representation.

Disclosure Required by Law or Court Order

Unlike Model Rule 1.6, Cal Rule 1.6 has no express exception when disclosure is required by court order or law. Are lawyers not complying with their Discovery Act obligations because there is no express exception in Cal Rule 1.6 for such compliance? Of course not, and this points out a serious deficiency in a professional rule when its express text  is not calibrated to the realities of practice and the legitimate needs of the legal system. Cal Rule 1.6 does indirectly address this issue, but it does so by comment rather than placement in the blackletter of the Rule. See Cal Rule 1,6, cmt. 2:

A lawyer’s ethical duty of confidentiality is not so limited in its scope of protection for the lawyer-client relationship of trust and prevents a lawyer from revealing the client’s information even when not subjected to such compulsion. Thus, a lawyer may not reveal such information except with the informed consent* of the client or as authorized or required by the State Bar Act, these rules, or other law.

(Emphasis added).[3] On this point there is no difference between the Cal Rule and the Model Rule except that the Cal Rule obscures what the Model Rule makes clear.

Disclosure for Legal Advice

Courts have found an implied exception similar to Model Rule 1.6(b)(4) which permits a lawyer to disclose client confidential information regarding a lawyer’s professional obligations or legal exposure for misconduct. See Chubb & Sons v. Superior Court 176 Cal.Rptr389, 394-95 (Cal App.2014): Fox Searchlight Pictures Inc. v. Paladino, 106 Cal Rptr. 906, 913-14 (Cal. App. 2001). Both decisions involved a lawyer client’s disclosure of confidential, privileged information to their lawyer in a wrongful termination action. Both courts allowed the disclosure noting that the person to whom disclosure was made (a lawyer) was also bound to maintain the confidentiality of the disclosed information, which negated concerns that the disclosure would be public. See also COPRAC Formal Opinion . 2012-183 (distinguishing between a lawyer’s private disclosure of client confidential information  to the lawyer’s attorney and public disclosure of that information and following Fox Searchlight on the right to private disclosure for legal advice).

Disclosure for Self-Defense

On the self-defense exception (Model Rule 1.6(b)(5) the Los Angeles County Bar Association Professional Responsibility and Ethics Committee  opined in Ethics Opinion No. 519, that there is no general self-defense exception to a lawyer’s professional duty of confidentiality. Opinion 519 dealt with a lawyer who was named as a defendant in a class action arising out of work the lawyer did for the client. Opinion 519  discussed Cal Evid. Code § 958 (“There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.”), but found it inapplicable to the facts presented in the Opinion. Opinion 519 did recognize that a limited right to disclose is recognized by  § 958  but that right was effectively limited to the defense of  malpractice claims brought by the client, fees disputes between the lawyer and the client, and the defense of disciplinary actions. Opinion 519, at 9. Opinion 519 presents a narrow interpretation of the self-defense exception contained in Evid. Code  § 958, but one that is consistent with the Law Revision Comments that led to the adoption of  § 958 and California law. See Brockway v. State Bar (1991) 53 Cal.3d 51, 63-64 noting that Section 958 “is not a general client-litigant exception allowing disclosure of any privileged communication simply because it is raised in litigation.” A California lawyer should tread carefully when thinking of using a self-defense argument to justify disclosure of information protected by Cal Rule 1.6 that would be harmful or embarrassing to the client outside of the three situations identified in Opinion 519.

Other Model Rule Express Exceptions Allowing Disclosure

There is consensus that the Model Rule exceptions that permit disclosure to avoid substantial property or economic loss (Model Rule 1.6(b)(2)-(3) are not exceptions under Cal Rule 1.6. Less clear is Model Rule exception 1.6(b)(7) which permits limited disclosures for purposes of conflicts screening for lawyers moving between firms. It appears that California lawyers and law firms are applying in practice the conflict disclosure permitted by Model Rule 1.6(b)(7)  without complaint by the State Bar. One can argue that avoiding conflicts of interest is required by the Cal Rules, so the practice is allowed by Rule 1.6, cmt. 2,[4] but clarity from the State Bar here would be helpful.

So, to sum it all up: (1) California recognizes the equivalent of the Model Rule’s implied authority exception through the interpretations of “secrets” as not including information the disclosure of which would be “harmful” or “embarrassing” to the client. (2) California does not recognize the Model Rules exceptions that permit disclosure to prevent property damage or economic loss resulting from client crimes or fraud. (3) California does recognized implied exceptions that parallel the Model Rule exceptions that permit disclosure to obtain advice regarding professional obligations. (4) an implied exception for disclosures for in self-defense is more limited than that permitted by Model Rule 1.6(b)(5). (5) Cal Rule 1.6, cmt.2 requires disclosure of “secrets” when disclosure is compelled by law or court order. (7) there is no California authority that addresses the propriety of disclosures for conflict checking when lawyers move between firms, although that lack of authority has not appeared to inhibit the practice of providing information for conflict checking

Clients with Diminished Capacity

Model Rule 1.14 provides instruction how a lawyer should interact with a client with diminished capacity. Model Rule 1.14 also permits a lawyer to breach confidentiality when necessary to protect the client from a risk of substantial physical, financial, or other harm. Although a proposed Cal Rule 1.14 that paralleled Model Rule 1.14, but without the Model Rule’s limited exception permitting disclosure of client confidential information to protect the client from substantial financial, physical, or other harm, was proposed to the California Supreme Court, the Court rejected the proposed Rule. The court did not give reasons for the rejection. That rejection was unfortunate.  As The State Bar Committee on Professional Responsibility and Ethics (COPRAC) noted in  considering the issue of representing a client with diminished capacity in Formal Opinion 2021-207: “Few problems in the law of professional responsibility are more difficult than the issue of a lawyer’s obligations to a client with diminished decision-making capacity.” Formal Opinion 2021-207 does provide clear instruction and assistance to California lawyers on addressing issues that arise when representing clients with diminished capacity. That opinion was, however, provided against the absence of a California Rule on point and with the  backdrop of former Model Rule 1.14, a Rule that had been increasingly criticized for its lack of clarity and direction. Recently, however, the ABA has adopted a revised Rule 1.14 that remedies many of the prior complaints levied against prior Rule 1.14. Revised Rule 1.14 provides helpful assistance to lawyers confronting the difficult problem noted in COPRAC Formal Opinion 2021-207.[5] California lawyers must, however, keep in mind that in reading revised Model Rule 1.14, the part of the Rule that permits disclosure of client confidential information is not applicable to California lawyers.

Candor to The Court

Cal Rule 3.39(a)(1) is similar to Model Rule 3.3(a)(1) except in one major way. The major way is that California does not include a duty to disclose. Model Rule 3.3, cmt. 3 provides that: “There are circumstances where failure to make a disclosure is the equivalent of a material misrepresentation.” That language is not included in Cal Rule 3.3. Courts outside California have found that lawyers have an affirmative duty to disclose in a variety of situations, although not all of these courts have relied specifically on Comment 3. A non-exclusive list where courts have found a lawyer has an affirmative duty to inform the court include:

• Death of the Client
• Client Appearing under a False Identity
• Not Disclosing that Client is Incompetent
• Not Disclosing Juror Misconduct
• Not Disclosing Document Offered into Evidence is Incomplete or has been superseded
• Collusive (aka Mary Carter) Arrangements Between Supposedly Opposing Parties
• Not Disclosing Outstanding Court Orders
• Failing to Disclose a Settlement to Secure an Appellate Opinion on the Legal Issue(s) Involved

While California does not have Comment 3, it does have Bus. & Prof. Code § 6068(d), which provide that it is the duty of an attorney…:

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(Emphasis added). Misleading is a far broader concept than making an affirmative misrepresentation. One can mislead by silence or by not telling the whole truth. Thus, on the surface 6068(d) creates a stronger obligation on California lawyers to be truthful than does Model Rule 3.3(1) and Comment 3; however, has had limited application.

Juror Misconduct Known to Lawyer

Section 6068(d) was cited in People v. Pierce, 40 Cal.Rptr.2d 254 (Ct. App. 1995), Review Denied July 27, 1995 and ordered non-published, where the court chastised a lawyer for not  disclosing to the trial judge that (1) the lawyer had knowledge that a juror was incompetent, (2) should be removed from the jury, and (3) replaced by an alternate. That decision has no precedential value because the California Supreme Court ordered it not published. The court gave no reason for depublishing the opinion but it raises questions how vigorously § 6068(d) should be applied when a Rule of Professional Conduct (then Rule 5-220) addresses the topic. On the other hand the decision does illustrate appellate judicial displeasure with lawyer non-disclosure which results in the wasting of judicial resources or goes to the integrity of the decision-making process.

Client Death Known to Lawyer

Courts outside California have been unanimous in finding that a lawyer upon learning of the client’s death has a duty to immediately notify the court and opposing counsel. The leading case is Virzi v. Grand Trunk Warehouse & Cold Storage Co., 571 N.W.2d 652 (Mich. Ct. App. 1990). In Matter of Steven Pabros, (State Bar Court No. 17-0-05369), the lawyer was suspended for failing to notify the court that the client had died. The Hearing Board treated this as a violation of former Rule 5-220, although the cases cited by the Board involved active misrepresentations by the lawyer that the client was alive. The Hearing Board also noted that the lawyer’s silence violated a local rule of court.

There is another way to address lawyer silence when the client dies. The client’s death terminates the lawyer-client relationship and the authority of an attorney to act for his client normally ends with the client's death.”  Estate of Lanza (1964) 229 Cal.App.2d 720, 724; Herring v. Peterson (1981) 116 Cal.App.3d 608, 612; see also Restatement (Third) of Law Governing Lawyers § 31(2)(b) (1998); cf. Cal. Civ. Code § 2356(b)(death of principal (client) terminates agency relationship). Cal Rule 1.16(a)(4)requires the lawyer to withdraw if the client discharges the lawyer. The death of the client operates to discharge the lawyer as a matter of law, thereby obligating the lawyer to withdraw from the representation. Any other action is outside the lawyer’s authority once the client dies.

Section 6068(d) has been missing in action for most of the past half-century. Its prohibition on misleading conduct by lawyers is much stronger than the language in modern professional codes that focus on whether the lawyer knew the disclosure was false in fact. In fact an older decision commented that the duty found in § 6068(d) applied without regard to concerns over the confidential status of the information. See Hinds v. State Bar of California (1941) 19 Cal.2d 87, 93 [commenting that, had the attorney being disciplined known his client had made false statements in an affidavit, he would have been required to inform the court]. This decision has been ignored by more recent appellate decisions that promote confidentiality over disclosure. See, e.g., People v. Johnson (1998), 62 Ca. App. 4th 608 (instructing that lawyer who knows defendant client in criminal proceedings will testify falsely should not disclose client perjury but should allow client to testify in a narrative format rather than through direct examination as to those parts of the client’s testimony that are known by the lawyer to be false). It would be helpful if the relationship between Bus. & Prof. Code § 6068(d) and Cal. Rule 3.3(a)(1) was clarified.

These examples when California tribunals have recognized a duty to disclose are much shorter than those found when one looks a cases nationally. That said, the longer list does reflect a general judicial expectation that lawyers will be forthcoming and disclose in the identified settings. A California lawyer would be well advised to consider the propriety of disclosure versus non-disclosure, particularly given the mandate set out in Section 6068

Conclusion

Divergence between the Cal Rules and the Model Rules is often more apparent than real, often reflecting perhaps differences in drafting style and emphasis rather than fundamentally different professional obligations. California’s framework, though more restrictive in its blackletter text, relies heavily on judicial decisions, ethics opinions, and statutory provisions to supply functional equivalents to many Model Rule exceptions—particularly in areas such as implied authority, compliance with law, and disclosure for legal advice. At the same time, California deliberately rejects or narrows certain Model Rule exceptions, most notably those involving economic harm and broader self-defense disclosures, thereby reinforcing its historically stringent commitment to client confidentiality. This hybrid structure—formal rigidity paired with practical flexibility—creates both subtlety and uncertainty, requiring California lawyers to look beyond the text of the rules to understand their true scope. Ultimately, competent professional practice in California demands not only familiarity with the rules themselves but also a careful appreciation of how those rules operate in context, where tradition, interpretation, and professional judgment collectively define the boundaries of permissible conduct.