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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

1.6   Rule 1.6 Confidentiality of Information

1.6:100   Comparative Analysis of CA Rule

Primary California References: CRPC 1-100, 3-100, B&PC § 6068
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.1, 6.7, Attorney’s Liability Assurance Society, State-by-State Analysis of Ethics Rules on Client Confidences (Feb. 1994), reprinted in Thomas D. Morgan & Ronald D. Rotunda, 1995 Selected Standards of Professional Responsibility 132-40 app. A; Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 Geo. J. Legal Ethics 903 (1993); Roger C. Cramton, California Practicum: Proposed Legislation Concerning a Lawyer’s Duty of Confidentiality, 22 Pepp. L. Rev. 1467 (1995); Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. Davis. L. Rev. 367 (Winter 1995).

1.6:101      Model Rule Comparison

MR 1.6 provides that an attorney "shall not reveal information relating to representation of a client unless the client consents after consultation." However, MR 1.6 provides exceptions to this basic duty of confidentiality. First, disclosures that are "impliedly authorized in order to carry out the representation" are permissible. See MR 1.6(a).

Also, to the extent the attorney reasonably believes it necessary, disclosure may be made to: (a) prevent the client from "committing a criminal act that the attorney believes is likely to result in imminent death or substantial bodily harm," see MR 1.6(b)(1); (b) establish a claim or defense on behalf of the attorney in a controversy between the attorney and the client, see MR 1.6(b)(2); (c) establish a defense to a claim against the attorney based upon conduct in which the client was involved, see MR 1.6(b)(2) and (d) respond to an allegation in any proceeding concerning the attorney's representation of the client, see MR 1.6(b)(2).

An attorney's obligation to maintain client confidences is not governed by the CRPC but by California B&PC § 6068(e), which states that "[i]t is the duty of an attorney ... [t]o maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."

The key difference between MR 1.6 and B&PC § 6068(e), is that B&PC § 6068(e) does not provide any explicit exceptions to its duty of confidentiality. Under B&PC § 6068(e), the duty to preserve client information is broad and exacting; it is violated even by a revelation made with honest intentions and motives. See Earl Scheib, Inc. v. Superior Court (2nd Dist. 1967) 253 Cal.App.2d 703, 61 Cal.Rptr. 386.

In 1987 and 1992, the California Supreme Court rejected Proposed Rule 3-100, which would have created exceptions to the confidentiality requirement. As such, commentators claim that California has the strictest approach to the duty of confidentiality. See Fred C. Zacharias, "Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?," 6 Geo. J. Legal Ethics 903, (1993); Roger C. Cramton, "California Practicum: Proposed Legislation Concerning a Lawyer's Duty of Confidentiality," 22 Pepp. L. Rev. 1467 (1995); Fred C. Zacharias, "Privilege and Confidentiality in California," 28 U.C. Davis. L. Rev. 367 (Winter 1995).

1.6:102      Model Code Comparison

B&PC § 6068(e) is similar to the two-pronged duty under DR 4-101 which distinguishes between client "confidences" and "secrets." Moreover, California ethics opinions and DR 4-101(A) define confidences and secrets in roughly the same way. "Confidences" refer to privileged information gained directly from the client, while "secrets" refer to any information gained in the professional relationship that the client wants to keep secret or that could be embarrassing or detrimental to the client. See DR 4-101(A); See also L.A. Op. 386 (1980); C.O.P.R.A.C. Op. 1981-58.

1.6:200   Professional Duty of Confidentiality

Primary California References: CRPC 3-310, B&PC § 6068, Evid. Code 950-955
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.1, 6.7

The attorney-client relationship is one of strict fiduciality and confidentiality. See Zador Corp. N.V. v. C.K. Kwan (6th Dist. 1995) 31 Cal.App.4th 1285, 1293, 37 Cal.Rptr.2d 754 (an attorney and a client have a fiduciary relationship of the very highest character, requiring the attorney to respect his or her client’s confidences); McClure v. Donovan (2nd Dist. 1947) 82 Cal.App.2d 664, 666, 186 P.2d 718 (the attorney-client relationship is sacred and confidential). The integrity of the legal profession requires at all times the protection of a client who depends upon and confides in the attorney. See C.O.P.R.A.C. Op. 1981-58 (1981). The duty of confidentiality arises whenever a lawyer-client relationship exists and protects all information regarding the representation, regardless of the source of the information. See Commercial Standard Title Co., Inc. v. Superior Court of San Diego County (4th Dist. 1979) 92 Cal.App.3d 934, 155 Cal.Rptr. 393. The broad duty of confidentiality should not be confused with the narrower attorney-client privilege. See Wolfram § 6.7.3; See also C.O.P.R.A.C. Op. 1993-133 (duty to maintain client confidences and secrets inviolate is broader in scope than the privilege); L.A. Op. 436 (1985) (“confidence” and “secrets” under B&PC § 6068(e) is far broader than the attorney-client privilege). The attorney-client privilege only protects client communications made to a lawyer for the purpose of obtaining legal advice. See Id.; See also Geoffrey C. Hazard, Jr., et al., The Law and Ethics of Lawyering, at 220-349 (2d ed. 1994).

The following comments on B&PC § 6068(e) are taken from Karpman & Margolis pages 171 and 174:

Privileged communications do not become discoverable solely because they are related to issues raised in litigation. However, a lawyer may divulge confidential client communications to defend against actions brought against the lawyer by the client. Schlumberger, Ltd. v. Superior Court (2nd Dist. 1981) 115 Cal.App.3d 386, 392-393, 171 Cal.Rptr. 413.

Both B&PC § 6068(e), and former CRPC 4-101 (1975) (now CRPC 3-310), which bars a member from seeking employment adverse to former client, are aimed at protecting the same thing—the confidential relationship between lawyer and client. Jeffry v. Pounds (3rd Dist. 1977) 67 Cal.App.3d 6, 9-10, 136 Cal.Rptr. 373.

The whereabouts of a fugitive client known to a lawyer constitute privileged communications which cannot be disclosed by the lawyer under this section. In the Matter of DeMassa (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737, 750-751. However, the lawyer’s ethical duty not to disclose client confidences and secrets does not extend to affirmative acts which further a client’s unlawful conduct. In re Young (1989) 49 Cal.3d 257, 261 Cal.Rptr. 59, 776 P.2d 1021 (lawyer disciplined for providing financial assistance to a fugitive client with the intent to avoid the client’s arrest and with knowledge the client had been charged with committing a felony).

References

B&PC § 6202 (disclosure of confidential communications in arbitration proceedings); B&PC § 6149 (written fee contract is a confidential communication).

Evid. Code §§ 950-955 (confidential communications between lawyer and client; assertion of privilege).

MR 1.6 (confidentiality of information), MR 3.8(f) (forbids subpoenaing of attorneys to present evidence concerning past or present clients except after adversarial hearing and prior judicial approval).

CRPC 3-310 (absent disclosure and waiver, lawyer barred from seeking employment adverse to former client when confidential information has been obtained).

C.O.P.R.A.C. Op. 1989-111 (Lawyer under no obligation to inform opposing counsel that his client cannot be located; such disclosure might violate this section and be detrimental to client’s interests; the lawyer may, however, reveal such information as is necessary to bring a motion to withdraw from representation).

C.O.P.R.A.C. Op. 1984-76 and L.A. Op. 466 (Disclosure of evidence of crime received from client).

C.O.P.R.A.C. Op. 1979-50 (ethical obligations existing when client confidences may be, or are, disclosed by non-lawyer employee).

S.D. Op. 1993-2 (Duty to maintain confidences and secrets survives death of client).

1.6:210      Definition of Protected Information

Unlike the MR's broad definition of the information that is protected under the duty of confidentiality, California follows the DR's more limited definition, distinguishing between client "confidences" and "secrets." [See 1.6:102 Model Code Comparison, supra]. Both are considered privileged communications. See C.O.P.R.A.C. Op. 1981-58.

The duty of confidentiality also exists notwithstanding the termination of the attorney-client relationship. See David Welch Co. v. Erskine & Tulley (1st. Dist. 1988) 203 Cal.App.3d 884, 250 Cal.Rptr. 339. Therefore, the duty is owed to both present and former clients. See Earl Scheib, Inc. v. Superior Court (2nd. Dist. 1967) 253 Cal.App.2d 703, 708, 61 Cal.Rptr. 386.

The issue of whether information is "confidential" may arise, for instance, where a former client seeks to disqualify his or her attorney from representing an adverse party due to a conflict of interest. See CRPC 3-310; See also Flatt v. Superior Court (1994) 9 Cal.4th 275, 36 Cal.Rptr.2d 537, 885 P.2d 950 (an attorney is disqualified for simultaneously representing clients with adverse interests, even where representations are substantively unrelated). [See also, 1.6:390 Confidentiality and Conflict of Interest, infra].

Unsolicited Information

The receipt of unsolicited information from a prospective client raises difficult issues. For instance, a prospective client (with whom an attorney has had no prior contact) may leave a voice mail message with the attorney seeking representation for a claim against an existing client, or the communication may arrive by e-mail or regular mail. Is the attorney prevented from disclosing the prospective client's possible claim to the existing client?

As a preliminary note, the fact that the prospective client communicated by means of voice mail or e-mail is not in and of itself legally significant since under Evid. Code § 952, a communication is not deemed "lacking in confidentiality" simply because it is transmitted by electronic means.

In relevant part, the Evidence Code defines a "client" as a person who "consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity." Evid. Code § 951. Thus, one may be a "client" under the attorney-client privilege, without ever entering into an attorney-client relationship.

It is well established that the attorney-client privilege may apply to preliminary communications with an attorney made for the purpose of securing representation, provided that there is a reasonable expectation that the attorney will provide representation. See People v. Gionis (1995) 9 Cal. 4th 1196, 40 Cal.Rptr.2d 456, 892 P.2d 1199. The rationale for this rule is clear. As one court put it:

[N]o person could ever safely consult an attorney for the first time with a view to his employment if the privilege depended on the chance of whether the attorney after hearing his statement of the facts decided to accept the employment or decline it.

In re Dupont's Estate (1st Dist. 1943) 60 Cal.App.2d 276, 289, 140 P.2d 866. A law firm may be disqualified from representing an adverse interest to a party with whom it has had a preliminary consultation based upon the fear that the firm will use privileged confidential information received from the prospective client to his or her detriment. See, e.g., C.O.P.R.A.C. Op. 1984-84 (attorney may not represent an existing client against a person with whom he has had a preliminary consultation unless there is no reasonably foreseeable likelihood that the confidential information obtained in the preliminary consultation might be used to the person's detriment); L.A. Op. 366 (attorney may not represent former co-defendants of immunized witness where immunized witness disclosed his version of the events leading to the charge during preliminary consultations with attorney); cf., In re Marriage of Zimmerman (1st Dist. 1993) 16 Cal.App.4th 556, 565, 20 Cal.Rptr.2d 132 (litigant failed to show that opposing counsel received confidential information during 20 minute preliminary consultation).

The majority of cases dealing with whether the attorney-client privilege covers a preliminary communication with a prospective client involve some bilateral communication between the attorney and prospective client. See, e.g., People v. Gionis (1995) 9 Cal.4th 1196, 1212, 40 Cal.Rptr.2d 456, 892 P.2d 1199 (privilege did not apply to disclosure made after attorney declined representation since at the time of disclosure, there was no reasonable belief that attorney would provide assistance). See also, Benge v. Superior Court (5th Dist. 1982) 131 Cal.App.3d 336, 347, 182 Cal.Rptr. 275 (privilege applies to communications made by union members during union meeting because such communications were made in the course of seeking legal advice from attorneys).

People v. Gardner is an exceptional case because it deals with a unilateral, unsolicited "communication" by the prospective client to an attorney. The question in that case was whether an undelivered letter addressed to a public defender's office but seized from the accused's jail cell was privileged. People v. Gardner (1st Dist. 1980) 106 Cal.App.3d 882, 165 Cal.Rptr. 415. The court held that the privilege applied because the accused had a reasonable expectation that he would be represented by the public defender since he was indigent and had been represented by the public defender on seven previous occasions. Id. at 887.

The Gardner court reasoned that:

if the contents of the letter which [the accused] wrote to the public defender had been communicated in person to a representative of the defender's office, the communication would have been protected by the privilege. The fact that the communication was in the form of an undelivered letter requires, in our view, no different result.

Id. at 887.

A court may find that a prospective client who delivers an unsolicited message to an attorney cannot claim that the message is privileged for lack of a reasonable expectation that the attorney will provide representation. A prospective client who engages in an exchange with an attorney (i.e., one who walks into the attorney's office for an initial interview) may have a reasonable expectation (albeit slight) that the attorney will represent his or her interests simply by virtue of the fact that the attorney has taken the time for a consultation. On the other hand, it could be argued that at the time a prospective client leaves an unsolicited voice mail message, the prospective client has little basis to believe that the attorney will take on the matter.

It could also be argued that granting privilege to such communications would empower "prospective clients" to disqualify attorneys with a mere unilateral message, since as discussed above, a privileged communication with a prospective client may serve as a basis for disqualification on conflict of interest grounds.

Assuming that the unilateral message is privileged, the question becomes: how if at all is the privilege effected by the attorney's duty of loyalty owed to the existing client? In Flatt v. Superior Court, the California Supreme Court held that an attorney's duty of loyalty owed to an existing client obviates a duty to advise a prospective and conflicting client in terminating a professional relationship with the prospective client. (1994) 9 Cal.4th 275, 36 Cal.Rptr.2d 537, 885 P.2d 950. The question of whether the attorney could have disclosed to the existing client, the potential claim by the prospective client, was not before the court. It is doubtful that under these circumstances, the duty of loyalty owed to the existing client would justify breaching the attorney-client privilege of the prospective client.

A.B.A. Op. 90-358 addresses this issue in the context of three hypothetical cases. The analysis of all three cases is based upon:

the reasonable expectations of the existing and would-be clients, the nature of the information received from the would-be client, the relative duties of loyalty owed the existing and would-be clients, and the detriment to the existing client and the justice system that might occur were the law firm required to withdraw from the existing representation.

A.B.A. Op. 90-358.

In Case 1, client "B" consults with a law firm about suing law firm's client "A." The attorney-client privilege prevents the law firm from disclosing the possibility of B's forthcoming suit to A. A.B.A. Op. 90-358.

In Case 2, a law firm represents client corporation "C" and is charged with developing a strategy to avoid hostile takeovers. Prospective client corporation "D" consults with the law firm, disclosing only that it seeks representation on a matter hostile to C. The law firm may not rely on D's inquiry to deduce and or reveal D's hostile plans with respect to C. A.B.A. Op. 90-358.

In Case 3 a law firm represents client "E," who desires secrecy in acquiring certain real estate property. Prospective client "F" seeks assistance from the law firm in acquiring the same property. The law firm may not reveal F's inquiry to E or otherwise rely on F's inquiry in the conduct of negotiations to obtain the property unless F's interest in the property becomes generally known. A.B.A. Op. 90-358.

Unlike the scenario at hand, in each of A.B.A. Op. 90-358's three hypothetical cases, the prospective client has had a bilateral exchange with the law firm. It is uncertain whether the results of A.B.A. Op. 90-358's cases would be altered if they involved unilateral communication from the prospective clients to the law firms.

1.6:220      Lawyer's Duty to Safeguard Confidential Client Information

An attorney must refrain from divulging a client’s secrets or confidences. See Stockton Theaters, Inc. v. Palermo (3rd Dist. 1953) 121 Cal.App.2d 616, 264 P.2d 74. Therefore, an attorney must not act in a way where such secrets or confidences or knowledge of the client’s affairs learned in the course of the prior employment can be used to the former client’s disadvantage. See Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564, 15 P.2d 505. It is the possibility that there will be a breach of confidence, not the actual use or misuse of confidential information, that triggers the disqualification of an attorney. See Woods v. Superior Court (5th Dist. 1983) 149 Cal.App.3d 931, 197 Cal.Rptr. 185; Trone v. Smith (9th Cir. 1980) 621 F.2d 994.

The rule of confidentiality is aimed at preventing the dishonest practitioner from fraudulent conduct and the honest practitioner from being put in a position to choose conflicting interests or be led to reconcile conflicting interests. See Earl Scheib, Inc. v. Superior Court (2nd. Dist. 1967) 253 Cal.App.2d 703 at 706, 61 Cal.Rptr. 386 (citing Anderson v. Eaton (1930) 211 Cal. 113, 293 P. 788. An attorney who fails to maintain a client’s confidences may be enjoined. See Meehan v. Hopps (1st Dist. 1956) 144 Cal.App.2d 284, 301 P.2d 10.

1.6:230      Lawyer Self-Dealing in Confidential Information [see also 1.8:300]

An attorney may not use confidential information in order to benefit himself or herself. See David Welch Co. v. Erskine & Tulley (1st Dist. 1988) 203 Cal.App.3d 884, 891-892, 250 Cal.Rptr. 339 (attorney acquired and used a former client’s business clientele to the attorney’s advantage). Self-dealing occurs when confidential client information is economically advantageous to the attorney yet unfavorable to the client. Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (4th Dist. 1990) 216 Cal.App.3d 1139, 1152-1154, 265 Cal.Rptr. 330 (defendant used its position as both attorney and partner to acquire confidential information that led his law firm to offer an earlier closing date and ensure its offer on a piece of property).

1.6:240      Use or Disclosure of Confidential Information of Co-Clients

[See 1.6:480 Privilege of Co-Clients, infra].

1.6:250      Information Imparted in Lawyer Counseling Programs [see also, Rule 6.3]

L.A. Op. 1978-358 deals with the question of whether the board of directors of a public legal services foundation may procure from its staff attorneys, financial information disclosed by the client during an initial interview. The board of directors sought to investigate whether in fact the client was financially eligible to receive the foundation's services. Id. The opinion concludes that the board of directors is not a party to the attorney-client relationship between the client and staff attorneys, and therefore the staff attorneys cannot divulge the information absent client consent. L.A. Op. 1976-358. See also, L.A. Op. 1978-378 (absent consent, lawyers for health care service may not disclose case summaries of clients' files even if such disclosure is unlikely to permit deduction of clients' identities); L.A. Op. 1988-449 (persons calling lawyer's telephone advice "hot-line" are owed duty of confidentiality).

1.6:260      Information Learned Prior to Becoming a Lawyer

In Actel Corp. v. QuickLogic Corp. (N.D. Cal. 1996) No. C 94-20050 JW, 1996 WL 297045, a law firm (Lyon) was disqualified as plaintiff's counsel because one of its lawyers (Oleinik) had access to the defendant's confidential information while serving as a summer associate for the defendant's counsel (Skjerven). Lyon asked Oleinik whether he had ever worked on Actel v. QuickLogic while at Skjerven during the interviewing process and prior to his beginning work on the case. See Id. at 5. On both occasions Oleinik indicated that he had no such recollection, but in fact, his time log at Skjerven indicated that he had spent two hours working on the matter. See Id. at 5.

The court reproved Oleinik's conduct:

Even though Mr. Oleinik was a nonlawyer when he worked at Skjerven Morrill, he was a lawyer charged with [the duty to uphold the integrity of the judicial process] at the time of the most critical event which triggered this Motion: when he accepted assignment at Lyon & Lyon to work on the Actel v. QuickLogic case. Given the intense litigation atmosphere in this locale today and the difficulty conflict-of-interest problems pose for all law firms, no lawyer can safely have such a dim recollection of his past work as Mr. Oleinik had in this case.

Id. at 7; See Id. at 8-9 (applying a rebuttable presumption of shared confidences in deciding the disqualification issue) [see 1.9:210 "Substantial Relationship" Test, infra for a discussion of conflicts of interests created by non-lawyer employees]. Relying on In re Complex Asbestos Litigation (1st Dist. 1991) 232 Cal.App.3d 572, 596, 283 Cal.Rptr. 732, the court placed the burden on hiring law firms to conduct conflict of interest checks:

Recognizing the realities of faulty memories and the need for certainty in rules for disqualification in the not-uncommon situation of lawyers and nonlawyers moving between firms, the court in Asbestos put primary responsibility on the firm with the most knowledge and best able to protect against a conflict [sic] of interest: the employing law firm.

Id at 10.

The case of Allen v. Academic Games Leagues of America, Inc. (C.D. Cal. 1993) 831 F.Supp. 785 is also instructive on information learned prior to becoming a lawyer. The plaintiffs sought to disqualify defense counsel on conflict of interest grounds because one of its lawyers (Wright) had, prior to obtaining a license to practice law, advised plaintiff regarding litigation with defendant and attempted to negotiate a settlement on behalf of plaintiff between the parties. See Id. at 787. Wright also served on the plaintiff's board of advisors; during his tenure on the board he obtained his license to practice. See Id. at 788. The court did not apply CRPC 3-310 because it determined that there was no lawyer-client relationship between Wright and the plaintiff. Nonetheless, the court found disqualification appropriate:

Wright's role with [the plaintiff] placed him in a position of trust and confidence to the extent that he would act in the best interests of [plaintiff]. Wright's position as an Advisor to [plaintiff] raised the possibility that he was privy to confidential information....Therefore Wright's connection with plaintiff's business while a licensed attorney and his failure to avoid any possible conflict of interest provide a sufficient basis for disqualification.

Id. at 788-789 (citing CRPC 1-100 for the proposition that the CRPC are not the exclusive source for ethically impermissible conduct).

1.6:300   Exceptions to Duty of Confidentiality--In General

Primary California References: B&PC § 6068
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:101, ALI-LGL §§ 111-117A, Wolfram §§ 6.4, 6.7, Attorney’s Liability Assurance Society, reprinted in Thomas D. Morgan & Ronald D. Rotunda, 1995 Selected Standards of Professional Responsibility 132-40 app. A, Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. Davis L. Rev. 367, 370 (Winter 1995), Roger C. Cramton, “California Practicum: Proposed Legislation Concerning a Lawyer’s Duty of Confidentiality,” 22 Pepp. L. Rev. 1467 (1995), Nancy McCarthy, “Proposed Rule May Permit Breach of Confidentiality,” California Bar Journal (July 1997)

California is alone among American jurisdictions in providing no explicit exceptions to the lawyer’s professional duty of confidentiality. See Attorney’s Liability Assurance Society, reprinted in Thomas D. Morgan & Ronald D. Rotunda, 1995 Selected Standards of Professional Responsibility 132-40 app. A. As a result, the legal community has taken a “broad and rigid view” of this duty. See Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. Davis L. Rev. 367, 370 (Winter 1995). California courts, however, have established implied exceptions to the seemingly absolute non-disclosure requirement of B&PC § 6068(e). See e.g., Commercial Standard Title Co., Inc. v. Superior Court of San Diego County (4th Dist. 1979) 92 Cal.App.3d 934, 155 Cal.Rptr. 393 (with client’s consent); In re Young (1989) 49 Cal.3d 257, 261 Cal.Rptr. 59, 776 P.2d 1021 (future crime exception). Several ethics opinions also have suggested exceptions to the duty of confidentiality. See, e.g., L.A. Op. 1985-436 (with client’s consent); L.A. Op. 1983-414 (future crime exception); L.A. Op. 1982-396 (self defense exception); L.A. Op. 1976-353 (exception if dangerous crime is imminent).

It is possible that the exceptions to California’s attorney-client privilege are implied exceptions to the lawyer’s duty of confidentiality. See General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 32 Cal.Rptr.2d 1, 876 P.2d 487. In General Dynamics, the court held that a lawyer employed as in-house counsel has a tort remedy for retaliatory discharge in violation of public policy if two conditions are satisfied: (1) the circumstances would support such a claim by a discharged non-lawyer employee; and (2) the claim could be established without violating the lawyer’s confidentiality obligations. See General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1189, 32 Cal.Rptr.2d 1, 876 P.2d 487. The latter requirement is met by showing that “some statute or ethic rule, such as the statutory exceptions to the attorney-client privilege codified in the Evidence Code, specifically permits the attorney to depart from the usual requirement of confidentiality....” See General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1189, 32 Cal.Rptr.2d 1, 876 P.2d 487 (emphasis added). This opinion suggests that the exceptions to the attorney-client privilege apply as exceptions to the confidentiality statute.

In 1993, the State Bar proposed CRPC 3-100, which contained a limited exception to confidentiality drawn from MR 1.6(b). The exception provided that “[a] member is not subject to discipline who reveals a confidence or secret: ... (2) To the extent the member reasonably believes necessary to prevent the commission of a criminal act that the member believes is imminently likely to result in death or substantial bodily harm.” The proposed rule was rejected by the Supreme Court on June 3, 1993, without explanation.

1.6:310      Disclosure to Advance Client Interests or with Client Consent

California courts agree that the client must release the attorney from the duty of confidentiality. See Commercial Standard Title Co., Inc. v. Superior Court of San Diego County (4th Dist. 1979) 92 Cal.App.3d 934, 155 Cal.Rptr. 393; Stockton Theaters, Inc. v. Palermo (3rd Dist. 1953) 121 Cal.App.2d 616, 264 P.2d 74. Moreover, California ethics opinions confirm the need for a client’s consent before an attorney can disclose confidential information. See L.A. Op. 1985-436; L.A. Op. 1988-452.

1.6:320      Disclosure When Required by Law or Court Order

[See 1.6:300 Exceptions to Duty of Confidentiality - In General, supra].

1.6:330      Disclosure in Lawyer's Self-Defense

In California, there is an implied self-defense exception to the duty of confidentiality, allowing an attorney to divulge confidential client communications in order to defend actions brought by the client against the attorney. See In re National Mortgage Equity Corp. Mortg. Pool Certificates Securities Litigation (C.D. Cal. June 29, 1988) 120 F.R.D. 687; Schlumberger Ltd. v. Superior Court (2nd Dist. 1981) 115 Cal.App.3d 386, 171 Cal.Rptr. 413; L.A. Op. 1982-396. But see Dixon v. State Bar (1982) 32 Cal.3d 728, 187 Cal.Rptr. 30, 653 P.2d 321 (lawyer disciplined after using confidential information in suit brought by client to enjoin lawyer from harassing her). The absence of specific treatment in California rules or statutes makes it appropriate to look to MR 1.6(b) for guidance. See In re National Mortgage Equity Corp. Mortg. Pool Certificates Securities Litigation (C.D. Cal. 1988) 120 F.R.D. 687. MR 1.6(b) provides that “[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.”

In order to avoid unnecessary disclosure, one decision held that both the lawyer and the party seeking the lawyer’s disclosure of client information must submit proposed questions and responses to the court for an in camera inspection to provide the court the opportunity to determine that the inquiry is relevant and that the disclosure will not exceed ethical standards. See People v. Superior Court (Bauman & Rose) (2nd Dist. 1995) 37 Cal.App.4th 1757, 44 Cal.Rptr.2d 734.

1.6:340      Disclosure in Fee Dispute

Although no ethics rule provides that a lawyer may disclose confidential client information to collect a fee, a lawyer’s right to do so is implicit in California case law. See e.g., General Dynamics v. Superior Court (1994) 7 Cal.4th 1164, 32 Cal.Rptr.2d 1, 876 P.2d 487. But see In re Rindlisbacher (9th Cir. Bankr. 1998) 225 B.R. 180 (attorney cannot use confidential information to oppose client's discharge in bankruptcy).

1.6:350      Disclosure to Prevent a Crime

California is the only state that lacks a professional rule regarding client fraud. See Attorney’s Liability Assurance Society, State-by-State Analysis of Ethics Rules on Client Confidences (Feb. 1994), reprinted in Thomas D. Morgan & Ronald D. Rotunda, 1995 Selected Standards of Professional Responsibility 132-40 app. A; see also, L.A. Op. 1981-386. Currently, forty-one states require or permit a lawyer to disclose client information when it would prevent criminal fraud by a client, and seventeen states require or permit a lawyer to disclose client information to rectify a client’s fraud in which the lawyer’s services have been used. See L.A. Op. 1981-386.

Under California case law an attorney’s duty of confidentiality does not extend to actions which further a client’s unlawful conduct. See Nix v. Whiteside (1986) 475 U.S. 157, 106 S.Ct. 988; In re Young (1989) 49 Cal.3d 257, 261 Cal.Rptr. 59, 776 P.2d 1021; See also In the Matter of DeMassa (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737 (by remaining silent about his client’s whereabouts and providing lodging to the client, lawyer was convicted for harboring a fugitive, who was eventually indicted on federal drug charges). The lawyer’s duty to avoid assisting a client’s crime or fraud may require disclosure of client confidences or withdrawal of opinions. See Roberts v. Ball, Hunt Hart, Brown & Baerwitz (2nd Dist. 1976) 57 Cal.App.3d 104, 128 Cal.Rptr. 901; See also CRPC 3-700(B) (lawyer must withdraw from representation if his services will be used by the client to further criminal or fraudulent conduct). The exception applies only to fraud committed during the attorney-client relationship. See L.A. Op. 1981-386. Thus, this exception to B&PC § 6068(e) does not authorize an attorney to disclose his client’s intent to commit future crimes “if [the attorney] receives such information in confidence in connection with the confession of past crimes.”

The trial court may deny a motion for withdrawal when there is a disagreement between an attorney and a client over the client’s intent to commit perjury, but not when the disagreement has resulted in the breakdown of the attorney-client relationship such that it jeopardizes the client’s right to effective assistance of counsel. See People v. Brown (3rd Dist. 1988) 203 Cal.App.3d 1335, 250 Cal.Rptr. 762. Also, California’s permissive withdrawal rule, CRPC 3-700(C), does not permit withdrawal on the ground that the client has used the lawyer’s services to commit a prior fraud; permissive withdrawal under the rule may be made only when the client “seeks to pursue an illegal course of conduct.” The language appears to deal with prospective fraud, not the rectification of past fraud in which the lawyer’s services have been used. The flag-waving tip off on withdrawal included in the comment to MR 1.6 is not embodied in any California rule or decision.

1.6:360      Disclosure to Prevent Death or Serious Bodily Injury

A question arises as to whether Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, requiring health care providers to take reasonable steps to prevent a patient from killing or injuring a specific third person, will be extended to lawyers. See Hawkins v. King County (Wash. App. 1979) 24 Wash.App. 338, 602 P.2d 361 (Tarasoff duty applicable to lawyers if threats came from client, a specific victim was threatened, and victim was unaware of the threat).

Currently, California stands alone in requiring nondisclosure when an attorney discovers a client’s intention to cause death or serious bodily harm. See Roger C. Cramton, “California Practicum: Proposed Legislation Concerning a Lawyer’s Duty of Confidentiality,” 22 Pepp. L. Rev. 1467 (1995); see also, S.D. Op. 1990-1 (lawyer may not reveal confidential client information even when the client has “expressed an intention to kill or injure someone else”); C.O.P.R.A.C. Op. 1981-58 (B&PC § 6068(e) prevents a lawyer from disclosing an expert’s conclusion that a structure may be unstable in an earthquake). A recent California decision, however, found that an attorney has a duty of disclosure to the judge when a lawyer learns that his client is planning to escape or poses a threat to the court or court personnel. See People v. Cox (1991) 53 Cal.3d 618, 692, 280 Cal.Rptr. 692, 809 P.2d 351.

Twice before, the State Bar proposed CRPC 3-100, which would have excepted discipline for an attorney “who reveals a confidence or secret ... [t]o the extent the member, reasonably believes necessary to prevent the commission of a criminal act that the member believes is imminently likely to result in death or substantial bodily harm.” The proposal, which is similar to MR 1.6(b) was first submitted in 1987, but withdrawn in the face of court questions. In 1993, it was resubmitted, but rejected without comment by the court. Then, in 1994, Evid. Code § 956.5 was enacted, creating a conflict. Evid. Code § 956.5 provides that “[there] is no privilege ... if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.” See Fred C. Zacharias, Privilege and Confidentiality in California, 28 U.C. Davis L. Rev 367, 374 (Winter 1995). The State Bar has once again asked the California Supreme Court to adopt Rule 3-100 and as of this writing, the rule is under consideration by the court. If passed, the rule would: (1) allow an attorney to prevent a crime from occurring; (2) codify the definition of confidential information; and (3) mend the conflict between B&PC § 6068(e) and the exception in Evid. Code § 956.5. See also, Nancy McCarthy, “Proposed Rule May Permit Breach of Confidentiality,” California Bar Journal (July 1997).

1.6:370      Disclosure to Prevent Financial Loss

[See 1.6:300 Exceptions to Duty of Confidentiality - In General, supra].

1.6:380      Physical Evidence of Client Crime [see 3.4:210]

The ethical obligations of a criminal defense attorney whose client hands over physical evidence of the crime are governed by Pen. Code § 135, which states that it is a violation of the law for one knowingly to conceal or destroy any “instrument in writing, or other matter or thing [that] is about to be produced in evidence upon any trial, inquiry, or investigation whatever, authorized by law.” Similarly, former CRPC 7-107(A) (1975) provides that “[a] member of the State Bar shall not suppress any evidence that he or his client has a legal obligation to reveal or produce.”

Prior to taking over the evidence of a client’s crime, the attorney should give careful consideration as to the consequences of his or her action. See C.O.P.R.A.C. Op. 1984-76. The attorney should also inform the client of the attorney’s obligation to turn over physical evidence once possession occurs. See C.O.P.R.A.C. Op. 1984-76. After holding the evidence for a reasonable period of time, the attorney has an obligation to turn over the physical evidence to the prosecution. See C.O.P.R.A.C. Op. 1984-76.

1.6:390      Confidentiality and Conflict of Interest [see also, 1.7:200, supra]

CRPC 3-310(E) states that an attorney must not accept employment adverse to a client or former client, without the informed and written consent of the client or former client, relating to a matter in reference to which he or she has obtained confidential information by reason of or in the course of employment by the client or former client. See also In re Marriage of Zimmerman (1st Dist. 1993) 16 Cal.App.4th 556, 562, 20 Cal.Rptr.2d 132 (it is well settled that an attorney may not do anything which will injure the former client in any manner in which he formerly represented the client nor may he use any knowledge or information that he gained through the relationship against the former client). The purpose of this rule is to protect the confidential information, as well as the attorney-client relationship. See In re Marriage of Zimmerman (1st Dist. 1993) 16 Cal.App.4th 556, 562, 20 Cal.Rptr.2d 132. The possibility of a breach of this duty can trigger disqualification. See Woods v. Superior Court (5th Dist. 1983) 149 Cal.App.3d 931, 936, 197 Cal.Rptr. 185 (there was a potential for the disclosure of confidential information since husband’s attorney, who was being used in a dissolution action, previously had acted as the family’s business attorney, had drafted the wife’s will and had acted as counsel for the family corporation). The client or former client may, however, consent to the attorney’s acceptance of employment of an adverse client, which may thereby compromise the confidential relationship. See Arden v. State Bar (1987) 43 Cal.3d 713, 239 Cal.Rptr. 68, 739 P.2d 1236.

CRPC 3-310(E) does not contain the “substantial relationship test” as found in MR 1.9(b), which provides that “[a] lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client ... (2) about whom the lawyer had acquired information” protected by MR 1.6. Nevertheless, this test is referred to in California case law. See Zador Corporation, N.V. v. C.K. Kwan (6th Dist. 1995) 31 Cal.App.4th 1285, 1293-1294, 37 Cal.Rptr.2d 754 (attorney may not represent an adversary of a former client in a matter “substantially related” to the former client’s representation); Trone v. Smith (9th Cir. 1980) 621 F.2d 994, 998 (the test for disqualification is “whether the former representation is `substantially related’ to the current representation”); Global Van Lines, Inc. v. Superior Court (4th Dist. 1983) 144 Cal.App.3d 483, 489, 192 Cal.Rptr. 609 (same). The purpose of the substantial relationship test is to protect and enhance the attorney-client relationship in all its dimensions. See Trone v. Smith (9th Cir. 1980) 621 F.2d 994, 998.

To satisfy the substantial relationship test, the former client must show that the pending suit, wherein the attorney appears on behalf of the client’s adversary, is substantially related to the prior representation. See Zador Corp. N.V. v. C.K. Kwan (6th Dist. 1995) 31 Cal.App.4th 1285, 1293-1294, 37 Cal.Rptr.2d 754; see also, In the Matter of Charles Willie L. (2nd Dist. 1976) 63 Cal.App.3d 760, 763-74, 132 Cal.Rptr. 840 (an attorney is not barred from representing a client who is adverse to a former client if the matter for which the attorney is retained has no relation to any confidential information acquired in the course of the former representation). The test is satisfied if by the nature of the former representation or the relationship of the attorney to his former client, confidential information material to the present dispute would normally have been acquired by the attorney. See H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (2nd Dist. 1991) 229 Cal.App.3d 1445, 1454, 280 Cal.Rptr. 614. The focus is on the nature and extent of the former attorney’s involvement with the representation, as well as the factual and legal similarities of the cases. See H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (2nd Dist. 1991) 229 Cal.App.3d 1445, 1454, 280 Cal.Rptr. 614. The court must look at the time spent by the attorney on the prior case, the type of work performed, and the attorney’s potential exposure to the formulation of policy or strategy. See H.F. Ahmanson & Co. v. Salomon Brothers, Inc. (2nd Dist. 1991) 229 Cal.App.3d 1445, 1454, 280 Cal.Rptr. 614.

The substantial relationship test is not satisfied if the complaining client did not have a reasonable expectation that the attorney would hold the information in confidence. See Christensen v. U.S. District Court for Cent. District of Cal. (9th Cir. 1988) 844 F.2d 694, 698 (former corporate counsel allowed to represent former corporate board of director in suit by corporation since corporation knew that any information given to corporate counsel would be conveyed to board of director); Cornish v. Superior Court (4th Dist. 1989) 209 Cal.App.3d 467, 476, 257 Cal.Rptr. 383 (contractor knew that its attorney was also representing surety’s interests and, thus, contractor did not reasonably expect attorney would withhold communications from surety). But cf., Western Continental Operating Co. v. Natural Gas Corp. (1st Dist. 1989) 212 Cal.App.3d 752, 762-763, 261 Cal.Rptr. 100 (client had reasonable expectation that attorney would withhold certain information from co-client).

When the prior representation involves joint clients, the substantial relationship test is not used since there is an inherent substantial relationship between the pending and prior representation. See Zador Corp. N.V. v. C.K. Kwan (6th Dist. 1995) 31 Cal.App.4th 1285 at 1293, 37 Cal.Rptr.2d 754. Additionally, in the joint client context, it is necessary to disclose confidential information. See Zador Corp. N.V. v. C.K. Kwan (6th Dist. 1995) 31 Cal.App.4th 1285 at 1285, 37 Cal.Rptr.2d 754.

1.6:395      Relationship with Other Rules

[See 1.6:390 Confidentiality and Conflict of Interest, supra; Rule 1.7 Conflict of Interest: General Rule, infra].

1.6:400   Attorney-Client Privilege

Primary California References: B&PC § 6068, Evid. Code 911, 954, 955, 953, 952, 917, 962, 951
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:301, ALI-LGL §§ 118-128, Wolfram §§ 6.3-6.5, 8 J. Wigmore, Evidence § 2292 (1961)

The California Evidence Code states that “[n]o person has a privilege to refuse to disclose any matter or to refuse to produce any writing, object, or other thing.” See Evid. Code § 911(b) (emphasis added). However, the Code then grants such privilege to certain people. See e.g., Evid. Code § 954 (lawyer-client privilege).

The broad ethical duty of confidentiality should not be confused with the narrower attorney-client privilege. The professional duty of confidentiality encompasses all information relating to the representation and prevents a lawyer from voluntarily disclosing client information absent implied or express client consent. See Commercial Standard Title Co., Inc. v. Superior Court (4th Dist. 1979) 92 Cal.App.3d 934, 155 Cal.Rptr. 393. On the other hand, the attorney-client privilege only protects client communications made to a lawyer for the purpose of obtaining legal advice. See Geoffrey C. Hazard, Jr., et al., The Law and Ethics of Lawyering, at 220-349 (2d ed. 1994); See also Fisher v. United States (1976) 425 U.S. 391, 403, 48 L.Ed.2d 39, 96 S.Ct. 1569 (confidential disclosures made by a client in order to obtain legal advice are privileged). An attorney-client privilege exits “(1) [w]here legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.” See 8 J. Wigmore, Evidence § 2292 (1961).

The tension between the attorney-client privilege and the professional duty of confidentiality is greatest in California, which recognizes no exception to the duty while recognizing the crime-fraud exception to the privilege. The problem is exacerbated by California’s agency and tort laws, which impose civil liability in some situations in which a lawyer assists a client in a fraudulent transaction or fails to exercise due care in a legal opinion to the other party. [See 1.1:400 Liability to Certain Non-Clients et seq., supra]. Thus, California law gives conflicting commands to a lawyer in certain situations without providing any safe harbor or method of reconciling the competing obligations.

The fundamental purpose of the attorney-client privilege is to encourage full and frank communication between a client and his or attorney. See People v. Meredith (1981) 29 Cal.3d 682, 175 Cal.Rptr. 612, 631 P.2d 46. But see Trammel v. United States (1980) 445 U.S. 40, 50, 63 L.Ed.2d 186, 100 S.Ct. 906 (privilege contravenes the fundamental principle that the “public has a right to every man’s evidence”); People v. Thompson (4th Dist. 1982) 133 Cal.App.3d 419, 184 Cal.Rptr. 72 (same).

In the criminal context, the attorney-client privilege is of particular significance. In order to obtain full benefits to the right to counsel, an accused must have the assurance of confidentiality and privacy of communication with his or her attorney. See Barber v. Municipal Court (1979) 24 Cal.3d 742, 157 Cal.Rptr. 658, 598 P.2d 818; Fisher v. United States (1976) 425 U.S. 391, 48 L.Ed.2d 39, 96 S.Ct. 1569. Otherwise, the client is likely to be reluctant to confide in the lawyer, making it impossible for the lawyer to provide fully informed advice. See Id.

1.6:410      Privileged Communications

The attorney-client privilege grants the right to refuse to disclose any matter or to produce any writing, object or thing. See Montebello Rose Co, Inc. v. Agricultural Labor Relations Bd. (5th Dist. 1981) 119 Cal.App.3d 1, 173 Cal. Rptr 856. Along with oral and written statements, actions, signs and other means of communicating information are included within the privilege. See City & County of San Francisco v. Superior Court (1951) 37 Cal. 2d 227, 231 P.2d 26. Privileged communications are protected regardless of their relevancy to the issues in the litigation and any private or public interest in disclosure. See Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 371, 20 Cal.Rptr.2d 330, 853 P.2d 496 (attorney-client privilege includes communication not pertaining to the pending litigation); Spectra-Physics, Inc. v. Superior Court (6th Dist. 1988) 198 Cal.App.3d 1487, 1496, 244 Cal.Rptr. 258 (opposing counsel may be deposed only where “1) no other means exist to obtain the information than to depose opposing counsel; 2) the information sought is relevant and not privileged; and 3) the information is crucial to the preparation of the case”). The question to ask is whether the acts were intended to be privileged communications. See Grand Lake Drive In, Inc. v. Superior Court (1st Dist. 1960) 179 Cal.App.2d 122, 3 Cal.Rptr. 621. Information does not automatically become privileged just because it is communicated to an attorney. See People ex rel. Department of Public Works v. Donovan (1962) 57 Cal. 2d 346, 19 Cal.Rptr. 473, 369 P.2d 1.

Among the communications that the privilege protects from disclosure are correspondence, bills, ledgers, statements, and time records, which reveal the client’s motive in seeking representation, litigation strategy, or services performed. See In re Grand Jury Witness (9th Cir. 1982) 695 F.2d 359. Protected confidential information also includes legal opinion formed and advice given by attorneys in the course of the attorney-client relationship. See Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 20 Cal.Rptr. 2d 330, 853 P.2d 496.

Communications that may be obtained through discovery are not covered by the attorney-client privilege. See Aerojet-General Corp. v. Transport Indemnity Insurance (1st Dist. 1993) 18 Cal.App.4th 996, 22 Cal.Rptr.2d 862 (confidential memo that was mistakenly faxed to a lawyer was not covered by the privilege since it revealed information that would have been available through discovery). The privilege also does not protect statements made by the client to the attorney which had previously been made by the client to third parties. See Solon v. Lichtenstein (1952) 39 Cal. 2d 75, 244 P.2d 907.

1.6:420      Standing to Assert Privilege

A client has a privilege to refuse to disclose and to prevent another from disclosing confidential attorney-client communications if the privilege is claimed by: 1) the holder of the privilege; 2) a person authorized to claim the privilege by the holder of the privilege; or 3) the person who was the lawyer at the time of the confidential communication, unless there is no holder of the privilege in existence or the lawyer is instructed by a person authorized to permit disclosure. See Evid. Code § 954. If present, the lawyer should claim the privilege when the communication is sought to be disclosed. See Evid. Code § 955. The holder of the privilege is: 1) the client when he or she has no guardian or conservator; 2) a guardian or conservator of the client when the client has a guardian or conservator; 3) the personal representative of the client if the client is dead; 4) a successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership, business trust, corporation, or public entity that is no longer in existence. See Evid. Code § 953.

1.6:430      Communications "Made in Confidence"

“Confidential communication” between an attorney and a client refers to information transmitted in the course of the representation “by a means ... which discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted.” See Evid. Code § 952; See also People v. Castiel (1st Dist. 1957) 153 Cal.App.2d 653, 315 P.2d 79 (privilege does not prohibit the testimony of a third person who is present and overhears a conversation between the client and attorney). Confidential information includes “legal opinion formed and the advice given by the lawyer in the course of [the attorney-client] relationship.” See Evid. Code 952; [see also, 1.6:440 Communications from Lawyer to Client, infra]. Communication between a client and an attorney does not lack confidentiality just because it is transmitted by “facsimile, cellular telephone, or other electronic means between the client and lawyer.” See Evid. Code § 952.

When a privilege is claimed on the ground that the communication was made in confidence during the attorney-client relationship, the communication is presumed to have been made in confidence. See Evid. Code § 917. There must, however, have been an intent on the part of the speaker that it be confidential. See Jonon v. Superior Court (5th Dist. 1979) 93 Cal.App.3d 683, 155 Cal.Rptr. 822. The opponent of the claim of privilege, then, has the burden of establishing that the communication was not confidential. See Evid. Code § 917.

1.6:440      Communications from Lawyer to Client

Confidential information includes “legal opinion formed and the advice given by the lawyer in the course of [the attorney-client] relationship.” See Evid. Code § 952; see also, Alpha Beta Co. v. Superior Court (5th Dist. 1984) 157 Cal.App.3d 818, 824, 203 Cal.Rptr. 752 (confidential communications not only includes information from a client to his or her attorney, but also includes the attorney’s legal opinions and advice). Legal advice is privileged even if it does not relate to pending litigation. See Roberts v. City of Palmdale (1993) 5 Cal.4th 363, 20 Cal.Rptr.2d 330, 853 P.2d 496. California takes a broad approach, which applies the privilege to all such communications made by the lawyer, regardless of the content of the communications. See Evid. Code § 952.

1.6:450      Client Identity, Whereabouts, and Fee Arrangements

The attorney-client privilege usually does not protect the identity of a client, the client’s whereabouts, fee arrangements, the identification of payment by the case file name, and the general purpose of the work performed. See e.g., Clarke v. American Commerce Nat. Bank (9th Cir. 1992) 974 F.2d 127 (lawyer-client privilege does not prevent disclosure of a law firm’s billing statements that is under investigation for alleged violations of banking laws where the statements contained only the identity of the client, the client name, the fee amount and the general nature of services performed); People v. Sullivan (4th Dist. 1969) 271 Cal.App.2d 531, 77 Cal.Rptr. 25 (in the criminal context, protected information includes the name of a client who has been involved in a criminal activity or who may be a useful source for a criminal investigation); In the Matter of DeMassa (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 737, 750-751 (whereabouts of a fugitive client is considered privileged information). But cf. Rosso, Johnson, Rosso & Ebersold v. Superior Court (1st Dist. 1987) 191 Cal.App.3d 1514, 1518-1519, 237 Cal.Rptr. 242 (finding that a client’s name may be privileged when so much of the attorney-client relationship is already known that to disclose the name would disclose the confidential communication).

The following comments on B&PC § 6149 Written fee contract as confidential communication are taken from Karpman & Margolis page 252 with certain conforming changes:

Fee agreements are statutorily deemed confidential communications, and cannot be released or disclosed to third parties absent the client’s waiver. Since lawyers must delineate the scope of their representation, such disclosure could expose a client to criminal or civil liability. The fee agreement could also contain sensitive information concerning the client’s financial or personal affairs. However, if the client charges that the lawyer performed incompetently or in bad faith, the lawyer may disclose the fee agreement. Injustice might result if a client were permitted to make accusations regarding a lawyer’s performance and then assert the lawyer-client privilege to deny the lawyer the ability to defend against the charges.

References

B&PC § 6068(e) (duty to preserve the client’s secrets).

Evid. Code § 952.

L.A. Op. 1989-456 ([i]ssues regarding client billing and confidential communications; suggests that, in order to disclose certain information, an informed written consent should be obtained from the client, though this is not required by the CRPC; excellent discussion of case decisions prior to enactment of this statute and an analysis of what information is confidential).

1.6:460      Legal Assistance as Object of Communication

The fact of communicating, as opposed to the content of the communications, is not considered privileged information. See Rubio v. Superior Court (4th Dist. 1988) 202 Cal.App.3d 1343, 249 Cal.Rptr. 419. Moreover, the privilege protects disclosure of the actual communications, not the underlying facts upon which the communications are based. See Upjohn Co. v. United States (1981) 449 U.S. 383, 395-396, 66 L.Ed.2d 584, 101 S.Ct. 677.

1.6:470      Privilege for Organizational Clients

A corporation and other organizational clients are entitled to invoke the attorney-client privilege, even though there may be complications in applying the privilege to corporate clients. See Evid. Code § 953; See also Upjohn Co. v. United States (1981) 449 U.S. 383, 389-394, 66 L.Ed.2d 584, 101 S.Ct. 677 (communications at issue were made by corporate employees to the corporate counsel, at the direction of corporate superiors, in order to secure legal advice). The corporation’s dominant purpose in obtaining the communication is the determining factor of whether the communication is privileged. See Dickerson v. Superior Court (1st Dist. 1982) 135 Cal.App.3d 93, 185 Cal.Rptr. 97; Soltani-Rastegar v. Superior Court (1st Dist. 1989) 208 Cal.App.3d 424, 256 Cal.Rptr. 255; Bobele v. Superior Court (2nd Dist. 1988) 199 Cal.App.3d 708, 245 Cal.Rtpr. 144. In dicta, a California case found that the privilege also should be granted to unincorporated organizations, including labor unions, social clubs, and fraternal societies. See Benge v. Superior Court (5th Dist. 1982) 131 Cal.App.3d 336, 182 Cal.Rptr. 275.

1.6:475      Privilege for Governmental Clients

Attorney-client privilege is the same “where the client is a body politic as where the client is a corporation.” See People By and Through Department of Public Works v. Glen Arms Estate, Inc. (1st Dist. 1964) 230 Cal.App.2d 841, 862, 41 Cal.Rptr. 303. In order for information to be privileged, the dominant purpose must be for the transmittal to an attorney “in the course of professional employment.” See City & County of San Francisco v. Superior Court (1951) 37 Cal.2d 227, 235, 231 P.2d 26.

1.6:480      Privilege of Co-Clients

When two or more clients have retained or consulted a lawyer on the same matter, none of them can claim the attorney-client privilege regarding communication made in the course of that relationship in a civil proceeding. See Evid. Code § 962; see also, Zador Corp, N.V. v. C.K. Kwan (6th Dist. 1995) 31 Cal.App.4th 1285, 1294, 37 Cal.Rptr.2d 754 (joint client relationship is an exception to the attorney-client privilege); Miller, Morton, Caillat & Nevis v. Superior Court (6th Dist. 1985) 215 Cal.Rptr. 365 (opinion ordered to not be published) (exception applies to any communication between the attorney and one of the joint clients, even though the other client is not there). This exception does not apply to communications to a lawyer prior to the time that the client became a co-client. Id. at 371. The exception also does not apply where joint representation was undertaken or continued without any disclosure of conflicting interests and written consent. See Industrial Indem. Co. v. Great American Ins. Co. (2nd Dist. 1977) 73 Cal.App.3d 529, 140 Cal.Rptr. 806. Moreover, the joint client exception is not applicable to communications that a co-client makes to a lawyer other than the common lawyer who represents both clients. See Native Sun Inv. Group v. Ticor Title Ins. Co. (4th Dist. 1987) 189 Cal.App.3d 1265, 235 Cal.Rptr. 34.

In the partnership context, each partner’s act binds the partnership as well as every other partner. See Corp. Code §§ 15009, 15013-15015. An attorney represents all the partners as to matters of the partnership business. See Wortham & Van Liew v. Superior Court (4th Dist. 1987) 188 Cal.App.3d 927, 233 Cal.Rptr. 725; McCain v. Phoenix Resources, Inc. (1st Dist. 1986) 185 Cal.App.3d 575, 230 Cal.Rptr. 25. The attorney has a fiduciary obligation to disclose to all partners information relating to the partnership business even when the information was acquired from a partner from whom the lawyer generally takes direction. See Wortham & Van Liew v. Superior Court (4th Dist. 1987) 188 Cal.App.3d 927, 932, 233 Cal.Rptr. 725. The fiduciary duty one partner owes to another also governs the lawyer’s conduct. See Wortham & Van Liew v. Superior Court (4th Dist. 1987) 188 Cal.App.3d 927, 233 Cal.Rptr. 725. Only matters involving purely private or personal interests of one of the partners is construed as privileged. See Wortham & Van Liew v. Superior Court (4th Dist. 1987) 188 Cal.App.3d 927, 233 Cal.Rptr. 725.

The co-client exception to the attorney-client privilege has also been invoked to force disclosure of information when an attorney represents both the insured and insurer. See Glacier Gen. Assurance Co. v. Superior Court (2nd Dist. 1979) 95 Cal.App.3d 836, 157 Cal.Rptr. 435.

1.6:490      Common-Interest Arrangements

[See 1.6:480 Privilege of Co-Clients, infra].

1.6:495      Duration of Attorney-Client Privilege

The attorney-client privilege applies to confidential communications during preliminary negotiations with the attorney, even though employment does not result. See In Re Marriage of Zimmerman (1st Dist. 1993) 16 Cal.App.4th 556-565, 20 Cal.Rptr. 2d 132; Rosso, Johnson, Rosso & Ebersold v. Superior Court (1st Dist. 1987) 191 Cal.App.3d 1514, 237 Cal.Rptr. 242, 244. However, if the prospective client deliberately consults the firm, attempting to disqualify it or for some other purpose besides seeking representation, disclosure is permitted. See Clutchette v. Rushen (9th Cir. 1985) 770 F.2d 1469.

The duty of confidentiality also exists notwithstanding the termination of the attorney-client relationship. See David Welch Co. v. Erskine & Tulley (1st Dist. 1988) 203 Cal.App.3d 884, 250 Cal.Rptr. 339. Therefore, the duty is owed to both present and former clients. See Earl Scheib, Inc. v. Superior Court (2nd. Dist. 1967) 253 Cal.App.2d 703, 708, 61 Cal.Rptr. 386. In light of the fact that the duty applies to prospective, present and former clients, Evid. Code § 951 defines a “client” as any person who directly or through an authorized representative consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice.

1.6:500   Waiver of Attorney-Client Privilege

Primary California References: Evid. Code 912, Civ. Proc. Code §§ 2025, 2033
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 55:401, ALI-LGL §§ 128-130, Wolfram § 6.4

Unless it is waived, the attorney-client privilege remains in force. See Alpha Beta Co. v. Superior Court (5th Dist. 1984) 157 Cal.App.3d 818, 203 Cal.Rptr. 752. Under California’s subjective approach to waiver of the attorney-client privilege, the client must affirmatively waive his or her privilege. See Cunningham v. Connecticut Mut. Life Ins. (S.D.Cal. 1994) 845 F.Supp. 1403.

California statutory law provides certain circumstances in which a person may or may not waive the attorney-client privilege. See Evid. Code § 912. Evid. Code § 912(a) finds a waiver where a holder of the privilege has disclosed information or has consented to disclosure. On the other hand, Evid. Code § 912(c) provides that “[a] disclosure that is itself privileged is not a waiver of any privilege.” Another situation that does not qualify as a waiver of the privilege occurs when a disclosure that is protected by the attorney-client privilege is reasonably necessary for the accomplishment of the purpose for which the lawyer was consulted. See Evid. Code § 912(d). In the case of joint holders of the privilege, a waiver of the right of one joint holder does not affect the right of another joint holder to claim the privilege. See Evid. Code § 912(b).

In the context of depositions, the protection of information from discovery on the ground that it is privileged is waived unless a specific objection is timely made during the deposition. See Civ. Proc. Code § 2025(m)(1). If an objection is based on the attorney-client privilege, such claim should be expressly asserted. See Civ. Proc. Code § 2033(f)(2).

Privilege logs need to allow opposing counsel to make intelligent judgments about what is and is not being produced. Fiduccia v. U.S. Dept. of Justice (9th Cir. 1999) 105 F.3d 1035.

1.6:510      Waiver by Agreement, Disclaimer, or Failure to Object

The attorney-client privilege is waived where a holder of the privilege has consented to disclosure. See Evid. Code § 912(a); See also Hiott v. Superior Court (2nd Dist. 1993) 16 Cal.App.4th 712, 20 Cal.Rptr.2d 157 (client expressly consented to disclosure of videotape, thereby losing the privilege). But see Maas v. Municipal Court (Sully) (1st Dist. 1985) 175 Cal.App.3d 601, 221 Cal.Rptr. 245 (written immunity agreement did not waive witness’ attorney-client privilege since agreement did not mention witness’ confidential communications with her attorneys, did not require her to provide statements or testimony about such communications, and did not require disclosure of such communications by anyone else). A mere agreement to waive the attorney-client privilege in one lawsuit, without actual disclosure of the privileged documents, does not constitute a waiver of that privilege in a subsequent lawsuit. See Tennenbaum v. Deloitte & Touche (9th Cir. 1996) 77 F.3d 337. Moreover, a promise to waive the privilege is not itself a waiver of the privilege. See Tennenbaum v. Deloitte & Touche (9th Cir. 1996) 77 F.3d 337.

The privilege is also waived if there is a failure to object to the admission of the testimony which reveals the confidential information. See People v. Poulin (1st Dist. 1972) 27 Cal.App.3d 54, 67-68, 103 Cal.Rptr. 623 (failure to object to testimony or to claim the attorney-client privilege resulted in a waiver); Julrik Productions, Inc. v. Chester (2nd Dist. 1974) 38 Cal.App.3d 807, 811, 113 Cal.Rptr. 527 (writer waived the privilege by testifying without objection to the contents of a letter he wrote to his attorney); People v. Perry (1972) 7 Cal.3d 756, 103 Cal.Rptr. 161, 499 P.2d 129 (privilege is preserved while the holder remains silent when disclosure of communication is requested).

1.6:520      Waiver by Subsequent Disclosure

The attorney-client privilege is waived if a holder of the privilege, without coercion, discloses a significant part of the communication. See Evid. Code § 912(a). See also Transamerica Title Ins. Co. v. Superior Court (6th Dist. 1987) 188 Cal.App.3d 1047, 1052, 233 Cal.Rptr. 825 (disclosure did not contain a significant part of the client’s communication to its attorneys); Mitchell v. Superior Court (1984) 37 Cal.3d 591, 208 Cal.Rptr. 886, 691 P.2d 642 (disclosure was not of actual substance or content); Alpha Beta Co. v. Superior Court (5th Dist. 1984) 157 Cal.App.3d 818, 203 Cal.Rptr. 752 (verification of answers on a complaint were vague, conclusions, and lacking in factual depth). A waiver occurs only after disclosure has been made, not merely by an intent to disclose. See Lohman v. Superior Court In and For Alameda County (1st Dist. 1978) 81 Cal.App.3d 90, 146 Cal.Rptr. 171. Accordingly, if the client testifies regarding the confidential communications, the privilege is waived. See Julrik Productions, Inc. v. Chester (2nd Dist. 1974) 38 Cal.App.3d 807, 811, 113 Cal.Rptr. 527. Likewise, if the attorney, with the consent of the client, discloses privileged communication, the privilege is lost. See Klang v. Shell Oil Co. (2nd Dist. 1971) 17 Cal.App.3d 933, 95 Cal.Rptr. 265.

The privilege is not waived, however, by disclosures of confidential communications that are reasonably necessary for the accomplishment of the purpose for which the attorney was hired. See Evid. Code § 912(d); See also National Steel Products Co. v. Superior Court (4th Dist. 1985) 164 Cal.App.3d 476, 210 Cal.Rptr. 535 (attorney’s disclosure of confidential communications to another attorney did not waive the privilege since it was reasonably necessary); Raytheon Co. v. Superior Court (Renault & Handley Employees Inv. Co.) (6th Dist. 1989) 208 Cal.App.3d 683, 256 Cal.Rptr. 425 (trial court erred in determining that defendant had waived the privilege by disclosing the documents since it failed to determine whether disclosure was reasonable necessary). Inadvertent production of privileged documents may not waive the privilege. See discussion of State Compensation Insurance Fund v. WPS, Inc. (Telanoft) (1999) 70 Cal.App.4th 644, 82 Cal.Rptr.2d 799 in section 3.4:500, infra.

1.6:530      Waiver by Putting Assistance or Communication in Issue

An implied waiver occurs where a party to a lawsuit has placed in issue a communication that is normally privileged and which goes to the heart of the claim in controversy. See Rockwell Intern. Corp. v. Superior Court (Aetna Cas. & Sur. Co.) (2nd Dist. 1994) 26 Cal.App.4th 1255, 32 Cal.Rptr.2d 153; Chicago Title Insurance Co. v. Superior Court (1st Dist. 1985) 174 Cal.App.3d 1142, 220 Cal.Rptr. 507. For instance, the attorney-client privilege is waived by placing in issue the decisions, conclusions, and mental state of the attorney. See Merritt v. Superior Court (2nd Dist. 1970) 9 Cal.App.3d 721, 730, 88 Cal.Rptr. 337. In such a situation, “the gravamen of the lawsuit is so inconsistent with the continued assertion of the privilege as to compel the conclusion that the privilege has in fact been waived.” See Transamerica Title Ins. Co. v. Superior Court (6th Dist. 1987) 188 Cal.App.3d 1047, 1052, 233 Cal.Rptr. 825. However, case law has limited the latter situation to where the attorney will be called as a witness to prove such matters learned in the course of the representation. See Estate of Kime (2nd Dist. 1983) 144 Cal.App.3d 246, 193 Cal.Rptr. 718; People v. Dubrin (2nd Dist. 1965) 232 Cal.App.2d 674, 43 Cal.Rptr. 60.

1.6:600   Exceptions to Attorney-Client Privilege

Primary California References: Evid. Code 956-962, 917
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA §§ 55:901 et seq., ALI-LGL §§ 131-135, Wolfram §§ 6.4

The California Evidence Code gives broad protection to the personal and social interests that support confidentiality in the lawyer-client relationship, but contains a number of sound exceptions for situations in which other interests outweigh those of the lawyer or client. See Evid. Code §§ 956-962 (containing these departures from confidentiality). The exceptions include (a) the crime-fraud exception Evid. Code § 956: “no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud”; (b) the death or bodily injury exception Evid. Code § 956.5: “no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or bodily harm”; (c) the deceased client exception Evid. Code § 957: “no privilege under this article as to a communication relevant to an issue between parties all of whom claim through a deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction”; (d) exception when client breaches a duty to a lawyer Evid. Code § 958: “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”; and (e) the joint client exception Evid. Code § 962: “Where two or more clients have retained or consulted a lawyer upon a matter of common interest, none of them, nor the successor in interest of any of them, may claim a privilege”).

1.6:610      Exception for Disputes Concerning Decedent's Disposition of Property

There is no privilege for a communication relevant to an issue between parties, all of whom claim through a deceased client. See Evid. Code § 957. The rationale is that the deceased-client would want his or her wishes known. See Evid. Code § 957 Comment. There is also an exception regarding communication relevant to an issue concerning the deceased-client’s intent with respect to a deed of conveyance, will, or other writing, executed by the deceased-client in an attempt to affect an interest in property. See Evid. Code § 960. Moreover, there is no privilege as to a communication regarding the validity of a deed of conveyance, will, or other writing, executed by the deceased-client purporting to affect an interest in property. See Evid. Code § 961.

1.6:620      Exception for Client Crime or Fraud

Evid. Code § 956 provides that “[there is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.” See also Clark v. United States (1933) 289 U.S. 1, 15, 77 L.Ed. 993, 53 S. Ct. 465, 469 (no privilege when a client consults an attorney for advice that will serve him in the commission of a fraud). In order for the exception to apply, the client must intend to abuse the attorney-client relationship. See Geilim v. Superior Court (2nd Dist. 1991) 234 Cal.App.3d 166, 285 Cal.Rptr. 602; See also L.A. Op. 1980-386 (exception for present or future crime in Evid. Code § 956 is limited only to “where the attorney is hired for the specific purpose of facilitating the commission of the future crime or fraud.”). S.F. Op. 1977-2 states that information falling within the crime-fraud exception to privilege is confidential under B&PC § 6068(e). [See also, 1.6:350 Disclosure to Prevent a Crime, supra; 1.6:380 Physical Evidence of Client Crime, supra]. The exception extends in California to the prevention of an actual criminal act, not an intended civil fraud. See L.A. Op. 1980-386.

Evid. Code § 956.5 provides that there is “no privilege under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or bodily harm.” L.A. Op. 264 and L.A. Op. 274 state that disclosure of a future crime is limited to situation where it is needed to prevent immediate and serious injury. One recent ethics opinion, however, strongly states that a California lawyer cannot disclose a client’s intent to kill an informant. See S.D. Op. 1990-1 (even when the client has expressed an intention to kill or injure someone, the lawyer may not “blow the whistle.”). The opinion relies principally upon the California Supreme Court’s failure to adopt a rule containing any exceptions when it promulgated the revised CRPC in 1988 (to take effect May 27, 1989). S.D. Op. 1990-1. However, commentators suggest that the rationale for this opinion may have been to “entreat the legislature to pass ameliorative amendments” to the statute. See G.C. Hazard Jr. & W.W. Hodes, The Law of Lawyering, 167 n.5.1. (2d ed 1990 & Supp. 1991).

In order to fulfill the crime-fraud exception, a party has the burden of proving the existence of the crime or fraud. See Geilim v. Superior Court (People) (2nd Dist. 1991) 234 Cal.App.3d 166, 174, 285 Cal.Rptr. 602. A mere allegation of fraud is insufficient. See Dickerson v. Superior Court (1st Dist. 1982) 135 Cal.App.3d 93, 185 Cal.Rptr. 97. Under California case law, two elements must be shown in order to apply the crime-fraud exception. See Cunningham v. Connecticut Mut. Life Ins. (S.D.Cal. 1994) 845 F. Supp. 1403. First, the party invoking the exception must establish a prima facie case of fraud, consisting of evidence in which reasonable inferences can be made to establish the fraud. See Dickerson v. Superior Court (1st Dist. 1982) 135 Cal.App.3d 93, 185 Cal.Rptr. 97. The party seeking the exception must establish facts that will support the good faith belief by a reasonable person that the exception applies. See United States v. Zolin (1989) 491 U.S. 554, 105 L.Ed.2d 469, 109 S.Ct. 2619. The evidence does not need to be “independent” of the attorney-client communication. See United States v. Zolin (1989) 491 U.S. 554, 105 L.Ed.2d 469, 109 S.Ct. 2619. Moreover, it does not matter whether or not the attorney was aware of the fraud, but only that the communication furthered the fraud or the client intended the communication to further the fraud. See People v. Clark (1990) 50 Cal.3d 583, 622, 268 Cal.Rptr. 399, 789 P.2d 127. There must be a showing that this was the client’s purpose before the communication was received. See Dickerson v. Superior Court (1st Dist. 1982) 135 Cal.App.3d 93, 100, 185 Cal.Rptr. 97. The second element that a part invoking the exception must show is a reasonable relationship between the fraud and the attorney-client communication. See Dickerson v. Superior Court (1st Dist. 1982) 135 Cal.App.3d 93, 185 Cal.Rptr. 97.

There is a significant difference between an attorney who is given physical evidence of a crime and an attorney who is merely told the location of the physical evidence. See Dickerson v. Superior Court (1st Dist. 1982) 135 Cal.App.3d 93, 185 Cal.Rptr. 97. When an attorney is told the location and subsequently removes or alters the evidence, the original location or condition of the evidence loses the protection of the attorney-client privilege. See People v. Meredith (1981) 29 Cal.3d 682, 694-95, 175 Cal.Rptr. 612, 631 P.2d 46. However, if the attorney leaves the evidence where he or she discovered it, his observations derived from privileged communications are insulated from revelations. See People v. Meredith (1981) 29 Cal.3d 682, 694-95, 175 Cal.Rptr. 612, 631 P.2d 46.

1.6:630      Exception for Lawyer Self-Protection

There is no attorney-client privilege for communication relating to an issue of an attorney’s breach of duty. See Evid. Code § 958. Commentators agree that when a malpractice suit is filed against the lawyer, the client has waived any rights to the privilege. See G.C. Hazard Jr. & W.W. Hodes, The Law of Lawyering, 285 (2d ed 1990 & Supp. 1991). The rationale is the injustice of permitting a client of accusing an attorney of a breach of duty yet preventing the attorney from asserting his or her rights. See Evidence Code § 958 Comment. This exception has been applied when an attorney sues for the reasonable value of his or her services in legal malpractice actions, as well as cases in which an attorney’s competence is questioned in a habeas corpus proceeding. See Carlson, Collins, Gordon & Bold v. Banducci (1st Dist. 1967) 257 Cal.App.2d 212, 226-228, 64 Cal.Rptr. 915 (fee dispute); Schlumberger Limited v. Superior Court (2nd Dist. 1981) 115 Cal.App.3d 386, 392-393, 171 Cal.Rptr. 413 (legal malpractice action); In re Gray (4th Dist. 1981) 123 Cal.App.3d 614, 615-617, 176 Cal.Rptr. 721 (habeas corpus proceeding). However, the exception does not apply when an attorney misuses confidential information to defraud others. See Glade v. Superior Court In and For Placer County (3rd Dist. 1978) 76 Cal.App.3d 738, 143 Cal.Rptr. 119.

1.6:640      Exception for Fiduciary-Lawyer Communications

In California, there is no fiduciary exception to the attorney-client privilege. See Miller, Morton, Caillat & Nevis v. Superior Court (6th Dist. 1985) 215 Cal.Rptr. 365, 369 (opinion ordered not to be published). Thus, the “policies which underlie the privilege are as applicable in litigation between fiduciaries as in any other lawsuit.” See Id.

However, there are special rules governing who holds the privilege (and who has access to privileged information) when an attorney represents a fiduciary. See Wells Fargo v. Superior Court (2000) 22 Cal.4th 201, 91 Cal.Rptr.2d 716 (excellent overview of law); and United States v. Mett (9th Cir. 1999) 178 F.3d 1058 (beneficiaries of a trust may have access to advice given to trustee regarding the administration of the trust, but not to advice trustee obtained to "defend herself against...the beneficiaries").

1.6:650      Exception for Organizational Fiduciaries

[See 1.6:470 Privilege for Organizational Clients, infra].

1.6:660      Burden of Proof To Invoke the Privilege and Its Exceptions

The party asserting the privilege has the burden of proving the existence of the privilege, which is fulfilled by showing there is 1) an attorney-client relationship, 2) a communication between the attorney and client, and 3) the communication is confidential. See Kizer v. Sulnick (2nd Dist. 1988) 202 Cal.App.3d 431, 248 Cal.Rptr. 712. As to the last requirement, Evid. Code § 917 states that when a privilege is claimed on the ground that the communication was made in confidence during the attorney-client relationship, the communication is presumed to have been made in confidence. Where the burden of proving all three requirements is fulfilled, the burden then shifts to the party attacking the privilege to prove that the communication was not confidential. See Evid. Code § 917. If the opponent fails to meet that burden, then no further showing is required by the adverse party. See People ex rel. Department of Public Works v. Donovan (1962) 57 Cal.2d 346, 19 Cal.Rptr. 473, 369 P.2d 1.

The trial court has discretion in determining the applicability of the attorney-client privilege. See San Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194, 23 Cal.Rtpr. 384, 373 P.2d 448; Jessup v. Superior Court (1st Dist. 1957) 151 Cal.App.2d 102, 311 P.2d 177. When the right to disclosure of a communication clashes with the attorney-client privilege, the court must balance the need for disclosure against the fundamental right of privacy. See Roe v. Superior Court (2nd Dist. 1991) 229 Cal.App.3d 832, 280 Cal.Rptr. 380. To determine the scope of the privilege, the court must weigh the interest protected by nondisclosure with the interest advanced by disclosure. See Roe v. Superior Court (2nd Dist. 1991) 229 Cal.App.3d 832, 280 Cal.Rptr. 380. When the interest in disclosure is stronger, the court must limit the scope of discovery to the extent necessary for a fair resolution of the lawsuit. See Roe v. Superior Court (2nd Dist. 1991) 229 Cal.App.3d 832, 280 Cal.Rptr. 380.

California courts have narrowly construed the attorney-client privilege. See D.I. Chadbourne, Inc. v. Superior Court (1964) 60 Cal.2d 723, 739, 36 Cal.Rptr. 468, 388 P.2d 700 (finding that the privilege should be strictly construed); Grover v. Superior Court (1st Dist. 1958) 161 Cal.App.2d 644, 327 P.2d 212 (same); see also Trammel v. United States (1980) 445 U.S. 40, 50-51, 63 L.Ed.2d 186, 100 S.Ct. 906 (privilege should be narrowly construed as it contravenes the fundamental principle that the public has a right to every man’s evidence). But see L.A. Op. 1982-400 (California Supreme Court has broadly interpreted the attorney-client privilege).

Someone who is not a party to litigation can file a motion to protect privileged communications which a party seeks to introduce. Mylan Laboratories, Inc. v. Soon-Shiong (1999) 76 Cal.App.4th 71, 90 Cal.Rptr.2d 111 (formal motion to intervene not necessary or even allowed).

1.6:700   Lawyer Work-Product Doctrine

Primary California References: B&PC § 6202, Evid. Code 912, Pen. Code 1054.6, Civ. Proc. Code §§ 2018, 2028, 2025
Background References: ABA Model Rule 1.6, Other Jurisdictions
Commentary: ABA/BNA § 91:2201, ALI-LGL §§ 136-142, Wolfram § 6.6

In California, the work product doctrine, codified in Civ. Proc. Code § 2018, preserves the right of attorneys to prepare for trial with privacy, thereby allowing them to thoroughly prepare their cases and investigate both the favorable and unfavorable aspects of those cases. See Civ. Proc. Code § 2018(a). Work product consists of information, legal theories and strategies that the attorney has adopted from “interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs and countless other tangible and intangible ways.” See Hickman v. Taylor (1947) 329 U.S. 495, 551, 91 L.Ed. 45, 67 S.Ct. 385. The work-product doctrine applies in both civil and criminal litigation. See United States v. Nobles (1975) 422 U.S. 225, 45 L.Ed.2d 141, 95 S.Ct. 2160; Pen. Code § 1054.6. The rule also applies “in a nonlitigation legal capacity,” such as when an attorney structures a business transaction and in his or her role as a counselor. See Rumac, Inc. v. Bottomley (4th Dist. 1983) 143 Cal.App.3d 810, 192 Cal.Rptr. 104; Aetna Casualty & Surety Co. v. Superior Court (1st Dist. 1984) 153 Cal.App.3d 467, 200 Cal.Rptr. 471. Work-product protection in a nonlitigation setting furthers the goal of reducing litigation. See Rumac, Inc. v. Bottomley (4th Dist. 1983) 143 Cal.App.3d 810, 192 Cal.Rptr. 104; Aetna Casualty & Surety Co. v. Superior Court (1st Dist. 1984) 153 Cal.App.3d 467, 200 Cal.Rptr. 471.

The work-product doctrine affords qualified protection against discovery of general work-product and prohibits absolutely the forced disclosure of documents that reveal an attorney’s impressions, conclusions, opinions, or legal theories. See Nacht & Lewis Architects, Inc. v. Superior Court (3rd Dist. 1996) 47 Cal.App.4th 214, 54 Cal.Rptr.2d 575; In re Jeanette H. (5th Dist. 1990) 225 Cal.App.3d 25, 275 Cal.Rptr. 9; Fellows v. Superior Court (2nd Dist. 1980) 108 Cal.App.3d 55, 166 Cal.Rptr. 274. The doctrine reflects the strong “public policy underlying the orderly prosecution and defense of legal claims.” See Hickman v. Taylor (1947) 329 U.S. 495, L.Ed. 451, 67 S.Ct. 385.

Work product protection may even be available to a pro per litigant. Dowden v. Superior Court (1999) 73 Cal.App.4th 126, 86 Cal.Rptr.2d 180 (contains good discussion of development of California's work product doctrine).

Civ. Proc. Code § 2018 is based much on FRCP 26(b)(3), the federal codification of the work product doctrine. The federal rule provides that a party may obtain discovery of documents and tangible things “only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” See FRCP 26(b)(3). However, the court shall protect against the disclosure of the “mental impressions, conclusions, opinions, or legal theories of an attorney other representative of a party concerning the litigation.” See FRCP 26(b)(3).

1.6:710      Work-Product Immunity

While the attorney-client privilege is designed to satisfy the client’s need for confidentiality, the work-product doctrine safeguards the attorney’s need for privacy. See American Mut. Liab. Ins. Co. v. Superior Court (3rd Dist. 1974) 38 Cal.App.3d 579, 113 Cal.Rptr. 561. The attorney-client privilege protects confidential attorney-client communications, whereas the work-product doctrine protects an attorney’s work product whether or not it has been communicated to the client. See Aetna Casualty & Surety Co. v. Superior Court (1st Dist. 1984) 153 Cal.App.3d 467, 200 Cal.Rptr. 471. The attorney is the exclusive holder of the work product which may be used against the client in the context of litigation by adversaries of the client to the client’s disadvantage. Lasky, Haas, Cohler & Munter v. Superior Court (2nd Dist. 1985) 172 Cal.App.3d 264, 218 Cal.Rptr. 205; but see United States v. Nobles (1975) 422 U.S. 225, 45 L.Ed.2d 141, 95 S.Ct. 2160 (privilege should extend beyond the attorney to those who work with him); Fellows v. Superior Court (2nd Dist. 1980) 108 Cal.App.3d 55, 166 Cal.Rptr. 274 (work product protection created for the protection of the client, as well as the attorney).

The State Bar may discover work product of an attorney against whom disciplinary charges are pending when the work product is relevant to an attorney’s alleged breach of duty. See Civ. Proc. Code § 2018(e). Such discovery is “subject to ... client approval and to a protective order, where requested and for good cause, to ensure the confidentiality of work product except for its use by the State Bar in disciplinary investigations and its consideration under seal in State Bar Court proceedings.” See Civ. Proc. Code § 2018(e). When a client has initiated a complaint against an attorney, client approval shall be deemed to have been granted. See Civ. Proc. Code § 2018(e). In an action between an attorney and his or her client or former client, the work product privilege does not exist if the work product is relevant to an attorney’s breach of duty to the client arising out of the attorney-client relationship. See Civ. Proc. Code § 2018(f). But see Platt v. Superior Court (4th Dist. 1990) 214 Cal.App.3d 779, 262 Cal.Rptr. 32, 33 (Civ. Proc. Code § 2018 was never intended to shield the work product from the client when the client sues the lawyer for malpractice).

In an action between an attorney and a client or former client, the attorney may not rely on work product protection if the work product is "relevant to an issue of breach by the attorney of a duty to the attorney's client arising out of the attorney-client relationship." Civ. Proc. Code § 2018(f).

1.6:720      Ordinary Work Product

Civ. Proc. Code § 2018 provides two levels of protection for work product. The general rule is that work product is not discoverable “unless the court determines that denial of discovery will unfairly prejudice the party seeking the discovery ... or will result in an injustice.” See Civ. Proc. Code § 2018(b). Opinion work product, on the other hand, receives absolute protection. See 1.6:730 Opinion Work Product, infra].

1.6:730      Opinion Work Product

“Any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.” See Civ. Proc. Code § 2018(c). Opinion work product is afforded absolute protection. See Upjohn Co. v. U.S. (1981) 449 U.S. 383, 385, 66 L.Ed.2d 584, 101 S.Ct. 677; Rumac, Inc. v. Bottomley (4th Dist. 1983) 143 Cal.App.3d 810, 192 Cal.Rptr. 104. Such work product can not be disclosed even by a showing of substantial need or inability to obtain the equivalent without undue hardship. See Hickman v. Taylor (1947) 329 U.S. 495, 511, 91 L.Ed. 451, 67 S.Ct. 385.

If discovery of opinion work product was permitted, “much of what is now put down in writing would remain unwritten” and an attorney’s thoughts would not be his own. See Hickman v. Taylor (1947) 329 U.S. 495, 511, 91 L.Ed. 451, 67 S.Ct. 385. Therefore, it is imperative that a lawyer work with a certain degree of privacy. Otherwise, “[i]nefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial.” See Hickman v. Taylor (1947) 329 U.S. 495, 511, 91 L.Ed. 451, 67 S.Ct. 385. Yet, despite this rationale, many California courts have stated or implied that the work product doctrine can be used by an attorney against a former client. See Travelers Ins. Companies. v. Superior Court (1st Dist. 1983) 143 Cal.App.3d 436, 191 Cal.Rptr. 871; Popelka, Allard, McCowan & Jones v. Superior Court (1st Dist. 1980) 107 Cal.App.3d 496, 165 Cal.Rptr. 748; BP Alaska Exploration, Inc. v. Superior Court (5th Dist. 1988) 199 Cal.App.3d 1240, 245 Cal.Rptr. 682.

1.6:740      Invoking Work-Product Immunity and Its Exceptions

Upon a request for disclosure of work product, a party claiming work-product protection has the initial burden of proving that the matter sought to be disclosed comes within the doctrine. See People v. Superior Court (Bauman & Rose) (2nd Dist. 1995) 37 Cal.App.4th 1757, 44 Cal.Rptr.2d 734; Fellows v. Superior Court (2nd Dist. 1980) 108 Cal.App.3d 55, 166 Cal.Rptr. 274. The party must serve a specific objection to the request for disclosure within fifteen days after it has been served. See Civ. Proc. Code § 2028(d)(2). Failure to do so results in waiver of the objection. See Civ. Proc. Code § 2028(d)(2). See also Civ. Proc. Code § 2025(m)(1) (in the context of depositions, protection of information from discovery on the ground that it is work product is waived unless a specific disclosure is timely made during the deposition).

The party seeking disclosure may move the court for an order overruling the objection. See Civ. Proc. Code § 2028(d)(2). The party has the burden of proving that a denial of such disclosure will unfairly prejudice him or her in preparing the claim or defense or that it will result in an injustice. See Civ. Proc. Code § 2018(b); See also Jasper Constr., Inc. v. Foothill Junior College Dist. (1st Dist. 1979) 91 Cal.App.3d 1, 153 Cal.Rptr. 767. Moreover, work product is not discoverable absent a showing of “good cause.” See Sanders v. Superior Court (2nd Dist. 1973) 34 Cal.App.3d 270, 109 Cal.Rptr. 770. The judge must then weigh the competing interests. See Fellows v. Superior Court (2nd Dist. 1980) 108 Cal.App.3d 55, 166 Cal.Rptr. 274. The doctrine is not an absolute bar to discovery, but should be considered by the court in exercising its discretion. See Oceanside Union School Dist. v. Superior Court (1962) 58 Cal.2d 180, 23 Cal.Rptr. 375, 373 P.2d 439; Suezaki v. Superior Court (1962) 58 Cal.2d 166, 23 Cal.Rptr. 368, 373 P.2d 432.

1.6:750      Waiver of Work-Product Immunity by Voluntary Acts

Work product protection may be waived, even though no statute so provides. See Raytheon Co. v. Superior Court (6th Dist. 1989) 208 Cal.App.3d 683, 687, 256 Cal.Rptr. 425; United States v. Nobles (1975) 422 U.S. 225, 45 L.Ed.2d 141, 95 S.Ct. 2160. An exception to the absolute work product doctrine arises where the attorney has waived the protection by voluntary disclosure or consent to disclosure to a person other than the client. See BP Alaska Exploration Inc. v. Superior Court (5th Dist. 1988) 199 Cal.App.3d 1240, 1261, 245 Cal.Rptr. 682 (work product doctrine may also be waived “by failure to make the claim, by tendering certain issues, and by conduct between discovery and trial that is inconsistent with such claim.”). The work-product privilege is not waived except by a disclosure that is wholly inconsistent with the doctrine's purpose. See Fellows v. Superior Court (2nd Dist. 1980) 108 Cal.App.3d 55, 65-66, 166 Cal.Rptr. 274.

1.6:760      Waiver of Work-Product Immunity by Use in Litigation

Work product protection is waived for material used for cross-examination or to refresh a witness’ recollection. See Kadelbach v. Amaral (3rd Dist. 1973) 31 Cal.App.3d 814, 107 Cal.Rptr. 720. However, in attorney-client fee dispute arbitrations conducted by the State Bar or its designee, information may be disclosed without waiving work product protection. B&PC § 6202.

1.6:770      Exception for Crime or Fraud

The crime-fraud exception to the attorney-client privilege does not apply to the work product doctrine. See State Farm Fire & Casualty Co. v. Superior Court (2nd Dist. 1997) 54 Cal.App. 4th 625, 62 Cal.Rptr.2d 834. However, the exception does apply to the extent that the denial of disclosure will prejudice the party seeking discovery or work an injustice. See People v. Superior Court (Bauman & Rose) (2nd Dist. 1995) 37 Cal.App.4th 1757, 44 Cal.Rptr.2d 734.