The Attorney-Client Privilege in California – Evidence Code § 954

The California attorney-client privilege under Evidence Code § 954, simply put, is a law that ensures that any private communication between you and your attorney remains confidential and protected from disclosure to any third party. There are only a few exceptions to this rule.

In this article, we will quote the full language of the code section and then provide legal analysis. Evidence Code 954 reads as follows:

954. Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.

The relationship of attorney and client shall exist between a law corporation as defined in Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and the persons to whom it renders professional services, as well as between such persons and members of the State Bar employed by such corporation to render services to such persons. The word “persons” as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities.

This evidentiary privilege goes hand-in-hand with the right to counsel under the Sixth Amendment to the U.S. Constitution. ^1 2 3

For an attorney-client relationship to be effective, you must be able to share all relevant information with your lawyer without worrying that prosecutors may use it against you in court.

Therefore, the lawyer-client relationship is one of the most robust privileges in California evidence law.⁴

Examples

Here are some examples of situations in which the attorney-client privilege will protect information from disclosure in a criminal case:

• A DUI arrestee hires a criminal defense attorney and quickly admits to her that he had way too much to drink before he drove. The attorney may not disclose the content of their conversation to anyone in the court process.
• A woman provides information to the public defender on her financial status to see is eligible. It turns out that she is not eligible, though the attorney-client privilege protects this information from disclosure.

Exceptions

The lawyer-client privilege does not protect every communication between you and your attorney. There are two major exceptions to the privilege.

1. The attorney-client privilege does not apply when you seek the lawyer’s assistance in carrying out or planning a crime or a fraud.⁵
2. There is no lawyer-client privilege if the lawyer reasonably believes that disclosure of confidential attorney-client communication is necessary to prevent death or substantial bodily harm.⁶

1. What is the lawyer-client privilege?

The lawyer-client privilege is set out in Evidence Code 954. This statute provides that:

1. You do not need to disclose any confidential communications between yourself and your attorney that take place within the lawyer-client relationship; and
2. You may also prevent the attorney (or another third party) from disclosing such confidential communications.⁷

In addition, the attorney must “claim the attorney-client privilege” (that is, refuse to disclose the privileged communications) whenever anyone seeks to get them to disclose them.⁸

Example: Nicole is reluctant to tell her attorney Robert about how she had been selling marijuana on the side. She is afraid he might disclose such information if she fires him.

Robert explains to Nicole that the attorney-client privilege protects everything she tells him. Not only does he not need to testify about anything she tells him confidentially in the context of their relationship—he is not allowed to do so by law.

The lawyer-client privilege is one of several privileges in California evidence law that prevent the disclosure of certain confidential information in a court case. Other such evidentiary privileges include:

• The marital communications privilege (which applies to communications between spouses),⁹ and
• The psychotherapist-patient privilege (which applies to communications between a patient and a mental/emotional health therapist).¹⁰

1.1. Definition of a “lawyer”

For purposes of the California lawyer-client privilege, the term “lawyer” means

• anyone who has authorization to practice law in California, any other state, or any nation, and
• anyone whom the client reasonably believes has authorization to practice law in California, any other state, or any nation ¹¹

Example: Ara consults with Vartan, an immigrant from Armenia who claims to be a licensed attorney in Armenia. It later emerges that Vartan does not have any legal training—and does not have authorization to practice law in Armenia.

However, the lawyer-client privilege still protects Ara’s communications with him. This is because Ara reasonably believed he had a license to practice law somewhere.

In addition, the term “lawyer” for purpose of the attorney-client privilege also includes

• a California law firm/law corporation, and
• all the members of the California State Bar who work for that firm.¹²

However, the lawyer-client privilege does not extend to communications with “jailhouse lawyers”—or other people who offer legal advice without having a license to do so.¹³

Example: Convicted murderer John confesses to fellow inmate Mario that he did commit murder and asks for Mario’s help in filing a habeas corpus petition.

Mario may reveal John’s confession to prosecutors in spite of the lawyer-client privilege. This is because Mario has no license to practice as an attorney and never gave John any reason to believe he had.¹⁴

1.2. Definition of a “client”

For purposes of the attorney-client privilege, a “client” is anyone who consults a lawyer either

• to secure legal advice or services from them, or
• to retain (hire) them.¹⁵

A client may consult an attorney either

• personally or
• through an authorized representative.¹⁶

This means that the lawyer-client privilege may begin to apply before you have even hired an attorney. The privilege covers conversations you have with an attorney when you are considering retaining them—but have not yet done so.¹⁷

Example: Corey consults with a public defender to see if he meets the eligibility criteria for counsel that the state appoints. He signs a form setting out his financial assets. The lawyer-client privilege covers the form.¹⁸

The lawyer-client privilege continues to protect your communications with your attorney even after the attorney-client relationship has ended (as long as the communications took place while it still existed).¹⁹

In other words, even if you fire your attorney or they terminate the relationship (such as for nonpayment of fees), they still may not reveal anything you told them in confidence while they were your attorney.

1.3. Definition of “confidential communication”

The attorney-client privilege covers only confidential communication between you and your attorney.²⁰

This means it covers only information (including legal opinions and work product) that you reveal in confidence through methods that (as far as you are aware) will not disclose the information to anyone but:

1. The attorney, and
2. Third parties your attorney uses in your representation, such as administrative assistants and hired experts.²¹

Example: Miguel’s English is poor, so his attorney has a Spanish-English interpreter present at all their consultations. A paralegal who works for the criminal defense firm is present at many of the consultations, taking notes.

The communications between Miguel and his attorney are still confidential—and still subject to the attorney-client privilege. The interpreter and paralegal also cannot disclose the confidential information.

As a general rule, any communications between you and your attorney are presumably confidential—and thus the lawyer-client privilege covers them. If the prosecutor wants to argue that they are not, it is their burden to prove it.²²

Pre-existing documents

In some cases, documents or facts that are public information are “confidential communications.”²³

Let’s say, for example, that your attorney gives you a copy of

• your arrest report, indictment, or other public documents in your case, or
• a statute, case, law review article, or other legal research item.

Obviously, these documents themselves are not confidential. Though the fact that your attorney gave them to you is confidential under the lawyer-client privilege.²⁴

Example: While in jail awaiting his robbery trial, Carlos allegedly kills a fellow inmate. The court subpoenas his attorney to ask whether she showed Carlos a copy of his arrest report while he was in jail.

The prosecutor believes that information in the arrest report possibly provided a motive for Carlos to kill the other inmate. However, although the arrest report is not confidential, what Linda did and did not tell her client is.²⁵

However, this does not mean that you may make a document that already exists confidential simply by delivering it to your attorney.²⁶

As a general rule, documents that you prepare are confidential only if you prepared them specifically for the attorney and/or the representation.²⁷

Communications never delivered

The attorney-client privilege can cover communications that the client intended for an attorney—even if they never actually reached them.²⁸

Example: While in jail awaiting his trial, Larry writes a letter to the public defender in which he confesses to the murder and exonerates two co-defendants. The jail guard seizes the letter, and the prosecution wants to introduce it into evidence against him.

Luckily for Larry, the lawyer-client privilege covers the letter because he intended it as communication with his attorney—even though he did not have the chance to deliver it.²⁹

1.4. Applies to eavesdroppers

The lawyer-client privilege does not only prevent disclosure of confidential communications by

• you or
• your attorney.

It also allows you to prevent disclosure of these communications by eavesdroppers (Penal Code 632 PC)—that is, people who overheard, wiretapped or otherwise intercepted them without your consent.³⁰

According to Hemet criminal defense attorney Michael Scafiddi³¹:

“You can assert the lawyer-client privilege against anyone who is privy to confidential communications with your attorney—even if that person was not a party to the attorney-client relationship.

Let’s say a jail guard eavesdrops on you conferring with your attorney. Or your wife sneaks into your email account and reads something you received from your lawyer. These people will not be able to testify about what they heard or read due to the privilege.”

2. What are exceptions to the lawyer-client privilege?

There are two major exceptions to the lawyer-client privilege under the California Evidence Code. These are:

2.1. Crime or fraud

The attorney-client privilege does not apply to any communications between you and your attorney that are made in order to enable someone to

• commit a crime or fraud, or
• plan a crime or fraud.³²

In other words, you may not claim the attorney-client privilege to the extent you are using an attorney to help you with ongoing criminal activity.

Example: Jesse decides to use a hitman to intimidate a state witness into renouncing his plans to testify against Jesse. Jesse’s lawyer Saul helps Jesse find and negotiate with a hitman.

Because Saul is helping Jesse plan the crime of Penal Code 136.1 PC – dissuading a witness, the lawyer-client privilege is protecting none of their communications related to this plan.

2.2. Preventing death or substantial physical harm

The privilege for attorney-client confidential communications also will not apply in situations where the attorney believes that:

1. Someone is going to commit a criminal act that will cause death or substantial bodily harm to any individual, and
2. Disclosure of the confidential communication is necessary to prevent that act.³³

Note that this exception does not apply to criminal acts causing death or bodily harm that

• have already been committed, or
• are not preventable.

It only applies if the lawyer thinks that their disclosure will prevent the criminal act.³⁴

Example: Chan tells his criminal defense lawyer, Mark, that he plans to try to “pay off” certain witnesses who will be testifying against him—and that, if the bribes don’t work, he will “whack” them.

Mark did not violate the lawyer-client privilege by then reporting what Chan said—because he had reason to believe that Mark would kill or injure witnesses if he did not act.³⁵

3. What is waiver of the California attorney-client privilege?

In addition to the exceptions to the privilege we discussed above, you can also waive—that is, eliminate—the lawyer-client privilege by voluntarily doing either of the following:

1. Disclosing a significant part of the privileged communication between you and your lawyer to a third party, or
2. Consenting to the disclosure of that privileged communication by anyone else.³⁶

Example: Prosecutors have charged Henry with Penal Code PC – 261 rape. He prepares a lengthy written summary of the case for his criminal defense attorney but then posts it on his blog.

Because Henry disclosed the summary of events voluntarily, the lawyer-client privilege no longer protects that summary. (However, other things he shares in confidence with his lawyer still are.)

If you fail to claim the attorney-client privilege in a court proceeding where you have the right to do so, the court will deem you to have consented to the disclosure of privileged information (“waiver of the privilege”) in that proceeding.³⁷

For this reason, it is important to speak to your criminal defense attorney before discussing aspects of your case with anyone else.

When properly applied and handled, attorney-client privilege protects certain communications from becoming discoverable in litigation by opposing or investigating parties. The underlying goal is to ensure lawyers can provide legal advice to their clients and that clients can be secure in the confidentiality of those communications.

Though more often associated with communications between a business and its outside law firm counsel, or an accused criminal and her defense attorney, privilege may also apply to certain communications between in-house counsel and business personnel in an organization. But it isn’t always simple. Business people and even generalist lawyers often misunderstand attorney-client privilege, especially for communications with in-house counsel.

If privilege does not apply to a given communication, or if the privilege applied but is then lost or waived, the communication may need to be disclosed during e-discovery and may even become public. So what does in-house privilege look like, and what can you do to protect it? The answer will vary between states and countries, but here’s a high-level look at where to start.

Who is the Attorney?

The privilege applies to communications with any licensed lawyer who has a legal title, is part of the company’s legal department, and has been hired to work as a lawyer.

In some companies, former lawyers may be serving in different capacities. For example, at kCura, we have current and former attorneys on our sales and customer support teams. However, because these individuals aren’t hired to act in a legal capacity, the attorney-client privilege does not generally apply to their communications—even if they maintain law licenses and provide legal views on an issue.

On the other hand, disclosure of privileged communications to counsel’s representatives who are not attorneys—such as paralegals and administrative assistants—does not impair the privilege. This is true provided the representative is involved in the specific legal matter to which the communication relates.

Who is the Client?

A company operates through officers, directors, shareholders, and employees. Not all of these people can be considered the client for purposes of attorney-client privilege. Courts in various jurisdictions have developed their own tests for determining when privilege applies.

The United States federal courts and most US state courts apply a 1981 US Supreme Court ruling known as the Upjohn Test, which extends the privilege to attorney-client communications concerning matters within the scope of the duties of the particular person. If the privileged communication is made by, or distributed to, a person whose job duties are not relevant to the legal issues, the privilege may have been waived. For example, a business person seeking legal guidance on the interpretation or enforceability of a proposed contract could take advantage of privilege. But communications between counsel and that same business person concerning the company’s strategy on a patent troll claim, or concerning an HR legal claim made by another person in another department, may not be covered by privilege if those claims have no relevance to that business person’s role (think “gossip”).

A few states, including Illinois, still apply an older, stricter Control Group Test. This test applies privilege only to persons in positions to control, or take a substantial part in, the making of the company decision for which the legal advice is necessary. This group tends to be strictly limited, including only top management, or corporate employees who advise top management or are necessary for the transmission of information. If the privileged communication is made by, or distributed to, anyone outside the control group, the privilege may have been waived.

One point is clear: any person who works for an unrelated company is not the client, and disclosures to any such person would cause the privilege to be lost. That means the communication would then need to be disclosed in litigation because the privilege would have been waived.

Communication for Purpose of Obtaining or Providing Legal Advice

Broadly speaking, attorney-client privilege protects attorney-client communications which are made for the purpose of obtaining and providing legal advice. But in-house counsel serve as an integral part of the company and frequently act in “dual purpose” capacities—providing a mix of legal and business advice in response to mixed purpose questions. So how do the rules of privilege account for that hybrid expertise?

US court decisions on in-house attorney-client privilege vary between federal and state courts, and between different state courts, and each decision tends to be rather fact-specific. In some jurisdictions, courts hold that the privilege still applies if there is a blend of legal and business purposes, so long as legal advice is the “primary purpose.” In 2013, for example, the New Mexico Court of Appeals said that where the primary purpose is unclear, the court should find against the existence of privilege. However, in 2014, the DC Circuit Court stated that the true test is whether obtaining or providing legal advice was “one of the significant purposes” of the communication.

As an example of how these concepts could apply, a sales leader might send his general counsel an email with proposed terms for agreements that would allocate exclusive market territories between competing distributors. The email might ask whether there are any antitrust legal issues, and if so, whether the GC has ideas for addressing those issues through alternative ways for structuring the deals or by modifying the business terms. The sales leader might also tap into the GC’s broader in-house background experience by requesting non-legal input about how other companies have dealt with these issues.

In that example, the sales leader’s email should be protected by the DC Circuit’s “one of the significant purposes” legal advice test. However, it could be a closer call under the “primary purpose” legal advice test, depending on the wording. At the same time, the same email seems unlikely to obtain privileged status in any jurisdictions that do not allow a mixed primary legal and secondary business purpose for a privileged communication. A similar analysis may apply to the GC’s response, though an oral discussion is the more likely next step in this example.

Certain communications fall short of all privilege legal purpose tests. Merely copying counsel on a communication to other business personnel does not create attorney-client privilege. Similarly, inviting counsel to a broader meeting to keep counsel generally informed does not protect the discussions. Moreover, using the privilege label too often in these types of situations can create a sense that the privilege is being applied too loosely. That could undermine efforts to apply the privilege to more appropriate attorney-client communications—and that could mean putting your e-discovery protocols at risk.

Applying and Protecting Attorney-Client Privilege

It’s clear that no small number of issues play into properly applying the attorney-client privilege and in protecting the privilege against waiver based on improper disclosure.

Being mindful of these issues is especially important to consider in communications with in-house counsel, because internal company communications tend to be more quick and casual than communications with outside lawyers. Cases have turned on internal emails that personnel fired off to other personnel, with in-house counsel copied, without adequately considering that the content may contain unprivileged admissions of legal fault or wrong-doing.

Luckily, there are some practical ways to navigate the privilege minefield by reinforcing the following:

• When in doubt, leave it out. In other words, meet with counsel in person rather than sending risky emails.
• If you do feel the need to put something sensitive in writing rather than discussing it with counsel in person, always address your legal communications directly to counsel, rather than copying them.
• Other employees should only be included in the communication if they are involved in the legal matter at hand and thus have a reason to be informed. Relatedly, emails should be kept short to keep the subject matter focused and control the number of recipients.
• Also, in communications to counsel, explicitly request “legal advice for the company,” and correspondingly, explicitly label the sensitive legal communications “CONFIDENTIAL ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY WORK PRODUCT.”

Counsel should avoid including business and legal advice in the same communication where possible, or separate the advice into sections. Additionally, counsel with dual titles (e.g., general counsel, vice president, and secretary) should consider using only their legal title when signing off on legal advice.

These practices will not guarantee a positive privilege status, but they can strengthen an argument in favor of privilege. However, be sure not to overuse them and run the risk of a court finding that the privilege has been spread so thin it is redundant.

As a special note, keep in mind that most European Union countries don’t recognize in-house attorney-client privilege at all based on a perceived lack of independence. US in-house counsel may prefer to get outside counsel involved in communications respecting sensitive European issues.

Similarly, even in the US, your in-house counsel may favor involving outside counsel for certain matters where privilege protection is critical.

Our final note is just this: if you are lucky enough to work for a company that believes in the virtues of honesty, accountability, fair dealing, and lawful conduct, you may have less need to worry about protecting risky email content with attorney-client privilege—and less need to worry about what to do when an email that could have been privileged information winds up being discoverable.

Legal References:

Keep Your Divorce Confidential: 5 Tips for Protecting Your Attorney Client Privilege