Washington, DC -- California Governor Arnold Schwarzenegger has vetoed legislation allowing government lawyers to report official misconduct without facing loss of license or other discipline for breaching client confidentiality. This is the second veto of the bill in two years, as Schwarzenegger's predecessor, Gray Davis, vetoed a similar bill in 2002.
The measure, AB 2713 authored by Assemblywoman Fran Pavley (D-Woodland Hills), would have permitted lawyers representing governmental clients at any level to report crimes and fraud "in order to prevent or rectify substantial harm to the public." As a result of Schwarzenegger's action, Hawaii remains the only state recognizing government lawyers' responsibility to protect the public interest by exposing improper governmental activity.
Schwarzenegger's office had previously not expressed opposition to the bill. His action is a "pocket veto" after the end of the legislative session and is not subject to a legislative override.
"This is not the action of a reformer but of a politician interested in keeping dirty secrets," stated Jeff Ruch, Executive Director of Public Employees for Environmental Responsibility (PEER), which had strongly supported the bill. "Now the only ethical recourse for a government lawyer facing compelling evidence of corruption or threat to public safety is to resign and remain forever silent."
Former Nixon White House counsel John Dean was among the many individuals and organizations to endorse the bill, writing, "Without this law an attorney's license to practice law is in jeopardy should they report such misconduct by their government client."
AB 2713 grew out of the case of Cindy Ossias, an attorney for the Department of Insurance. Ms. Ossias reported kickbacks and other enforcement irregularities by the elected Insurance Commissioner, Chuck Quackenbush, to a legislative investigating committee. Faced with revelation of these internal secrets, Quackenbush resigned and fled the state. Ms. Ossias became the subject of a disciplinary complaint to the State Bar for revealing her employer's confidences. The State Bar declined to prosecute but also declined to issue a ruling protecting other lawyers under similar circumstances.
Schwarzenegger's message reads –
"This is a well-intended bill and I applaud the efforts to expose wrongdoing within government. However, this bill would condone violations of the attorney-client privilege, which is the cornerstone of our legal system. This bill will have a chilling effect on when government officials would have an attorney present when making decisions. It is an attorney's duty to advise the governmental officials when they are about to engage in illegal activity. This bill will ensure that advice is not conveyed in every situation and therefore it is too broad to affect the intended purposes. Existing law already addresses the most egregious situations, which is the only time the attorney-client relationship should be breached. It is critical to evaluate the recent changes to the law as it relates to the attorney-client privilege prior to further eroding this important legal principle. For the reasons stated I am unable to support this measure."
"Today in environmental agencies across the country, attorneys who are supposed to work for the public are prevented from exposing dangers to public health and serious pollution offenses," Ruch added.
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Look at a legislative analysis of the bill
See John Dean's letter to Gov. Schwarzenegger
View PEER's letter urging Gov. Schwarzenegger to sign the bill