Chapter 4 - §4. Attorney-client privilege

• Jurisdiction: United States

§4. Attorney-client privilege

§4.1. Overview. A client has a privilege to refuse to disclose, and to prevent another person from disclosing, a confidential communication between an attorney and the client. Evid. C. §954. The purpose of the attorney-client privilege is to foster full disclosure to counsel by clients without fear that the information will be conveyed to others. People v. Miles (2020) 9 Cal.5th 513, 589; People v. Bell (2019) 7 Cal.5th 70, 96; Los Angeles Cty. Bd. of Supervisors v. Superior Ct. (2016) 2 Cal.5th 282, 292; People v. Gionis (1995) 9 Cal.4th 1196, 1207; People v. Meredith (1981) 29 Cal.3d 682, 690; People v. Donovan (1962) 57 Cal.2d 346, 354. In furtherance of this policy, the attorney-client privilege should be broadly construed in favor of the party asserting the privilege. Benge v. Superior Ct. (5th Dist.1982) 131 Cal.App.3d 336, 344. The privilege is absolute and can take precedence even over a criminal defendant's trial rights. Bell, 7 Cal.5th at 96; Carroll v. Comm'n on Tchr. Credentialing (3d Dist.2020) 56 Cal.App.5th 365, 380.

§4.2. Elements of attorney-client privilege. For the attorney-client privilege to apply, there must be (1) an attorney-client relationship and (2) a confidential communication.

1. Attorney-client relationship. For the privilege to apply, there must be an attorney-client relationship. See Evid. C. §952. A relationship requires (1) an attorney, (2) a client, and (3) a consultation for some legal purpose. See id.; Citizens for Ceres v. Superior Ct. (5th Dist.2013) 217 Cal.App.4th 889, 914-15; see also People v. SpeeDee Oil Change Sys. (1999) 20 Cal.4th 1135, 1148 (attorney-client relationship is established prima facie when party seeking legal advice consults with attorney and secures advice). The privilege must be strictly construed when the attorney-client relationship is not clearly established. Wood v. Superior Ct. (4th Dist.2020) 46 Cal.App.5th 562, 575.

(1) Attorney. An attorney is defined as a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation. Evid. C. §950; see, e.g., People v. Velasquez (5th Dist.1987) 192 Cal.App.3d 319, 328 ("jailhouse lawyer"—nonattorney inmate assisting other inmates with legal advice—not protected by privilege; D must believe he is communicating with attorney). In criminal cases, a prosecutor (or district attorney) is not the representative of any particular party to a controversy but is instead a public officer in whom a discretion is vested that is not to be controlled by the courts or by an interested individual. Wood, 46 Cal.App.5th at 577.

(2) Client. A client is defined as a person who, directly or through an authorized representative, consults an attorney for the purpose of retaining the attorney or securing legal advice or services from him in his professional capacity. Evid. C. §951. A client can be a natural person or a corporate entity. Insurance Co. of N. Am. v. Superior Ct. (2d Dist.1980) 108 Cal.App.3d 758, 763; see Costco Wholesale Corp. v. Superior Ct. (2009) 47 Cal.4th 725, 733; see, e.g., Morgan v. Superior Ct. (4th Dist.2018) 23 Cal.App.5th 1026, 1034 (attorney-client privilege vests with office of trustee and not a particular person when trustee sought legal advice on behalf of trust). There is no requirement that the client be competent. See Evid. C. §951 (client includes incompetent party who consults with attorney or whose guardian or conservator consults with attorney on client's behalf). Unless otherwise specified, the client holds the attorney-client privilege and controls whether or not confidential information should be disclosed. See, e.g., O'Gara Coach Co. v. Ra (2d Dist.2019) 30 Cal.App.5th 1115, 1129 (privilege belonged to company and not to its former officer who possessed confidential information).

(3) Consultation. A consultation must be (1) with an attorney in a professional capacity and (2) for the purpose of retaining the attorney or securing legal advice or services. Evid. C. §951.

(a) Professional capacity. A consultation requires the client to consult with an attorney in the attorney's professional capacity. Evid. C. §951. An attorney will generally not be acting in a professional capacity when giving nonlegal advice, including business advice, acting as a business agent, or providing advice as a friend. Palmers v. Superior Ct. (2d Dist.2014) 231 Cal.App.4th 1214, 1226; see Kerner v. Superior Ct. (2d Dist.2012) 206 Cal.App.4th 84, 117. Although a communication may involve a legal matter, the privilege is inapplicable, and a communication is not privileged, if it has no relation to any professional relationship between the attorney and the client. See Wood, 46 Cal.App.5th at 576 (privilege requires more than merely speaking to attorney about legal matter).

(b) Purpose. A consultation requires the client to consult with an attorney for the purpose of (1) retaining the attorney or (2) securing legal advice or services. Evid. C. §951.

[1] Retaining attorney. A consultation occurs when a client consults an attorney for the purpose of retaining the attorney. See Evid. C. §951. The attorney need not actually be retained for the privilege to apply, so communications made in an initial consultation about a prospective legal matter or dispute are protected under the privilege. See Tien v. Superior Ct. (2d Dist.2006) 139 Cal.App.4th 528, 537. But statements made after the attorney has unequivocally and definitively declined to be retained are not protected by the privilege. People v. Gionis (1995) 9 Cal.4th 1196, 1210-11; see, e.g., Wood, 46 Cal.App.5th at 582 (fact that lawyers with Department of Fair Employment and Housing consistently disclaimed representation strongly weighed against finding of attorney-client relationship with petitioner).

[2] Securing legal services. A consultation occurs when a client consults an attorney for the purpose of securing legal advice or services. Evid. C. §951. This does not necessarily mean that the sole purpose of the consultation must be to secure legal advice or services, but it does require that it be the dominant purpose. Holm v. Superior Ct. (1954) 42 Cal.2d 500, 507, disapproved on other grounds, Suezaki v. Superior Ct. (1962) 58 Cal.2d 166; see Costco Wholesale, 47 Cal.4th at 735 (privilege does not attach if dominant purpose is something other than securing legal services; privilege is not applicable if attorney acts merely as negotiator or provides business advice); League of Cal. Cities v. Superior Ct. (4th Dist.2015) 241 Cal.App.4th 976, 989 (same). Thus, the purpose of the transmittal of information becomes a critical determination. See Costco Wholesale, 47 Cal.4th at 735-36. If the circumstances indicate that there may be a dual purpose, the court must make a finding on which purpose predominates in concluding whether the privilege should apply or be withheld. Holm, 42 Cal.2d at 507.

2. Confidential communication. In the context of the attorney-client privilege, a confidential communication is defined as information transmitted between a client and his attorney in the course of that relationship and in confidence by a means that discloses the information to no third persons other than those expressly permitted by Evid. C. §952. See, e.g., People v. Miles (2020) 9 Cal.5th 513, 589-90 (privilege did not extend to defense counsel's testimony because it related primarily to general legal principles and publicly available facts); People v. Clark (2016) 63 Cal.4th 522, 603 (privilege did not extend to prosecution expert's testimony regarding discovery process generally and hypothesis about how D, who was not expert's client, received grand-jury testimony of witness). In evaluating whether a communication is confidential, the court should initially focus on the "dominant purpose" of the relationship between attorney and client and not on the purpose served by the particular communication. Uber Techs. v. Google LLC (1st Dist.2018) 27 Cal.App.5th 953, 966; see Costco Wholesale, 47 Cal.4th at 739-40. The privilege does not encompass every conceivable communication between an attorney and a client and must relate to the provision of legal consultation. See Wood, 46 Cal.App.5th at 576.

(1) Presumption of confidentiality. A communication between an attorney and a client is presumed to have been made in confidence. Evid. C. §917(a). The presumption of confidentiality is not lost simply because the communication is transmitted by electronic means or because the individuals involved in delivering, handling, facilitating, or storing the communication may have access to the content of the communication. Evid. C. §917(b).

(2) Communication shared with third persons. A communication remains confidential if disclosure is made to third persons who, as far as the client knows, are either (1) present to further the client's interest in the consultation or (2) reasonably necessary for the transmission of the information or accomplishment of the purpose for which the attorney is consulted. See Evid. C. §952; People v. Rhoades (2019) 8...