Written by attorney Julie Anne Swain

Attorney’s Duty to Protect Client Confidences-Subpoena Duces Tecum

In some proceedings, a party may seek to obtain an attorney’s legal files through the use of a subpoena duces tecum. Requests seeking confidential communications between the client and attorney or attorney work product should be vigorously challenged. Even if clients are unaware of the request, each client is entitled to the protection of the attorney client privilege. As a result, not only is an attorney prohibited from disclosing the contents of client files, the attorney must object to the request. A Motion to Quash is the proper response to a request for privileged material.

“The attorney-client privilege is one of the oldest recognized privileges for confidential communications" (Swidler & Berlin v. United States(1998) 524 U.S. 399, 403) and is “one which our judicial system has carefully safeguarded with only a few specific exceptions" (Mitchell v. Superior Court(1984) 37 Cal. 3d 591). (People v. Gurule (2002) 28 Cal. 4th 557, 594.) In California, Business and Professions Code section 6068(e)(1) requires an attorney “maintain inviolate the confidence, and at every peril to himself or herself, preserve the secrets, of his or her client." The duty to maintain confidences and secrets even outlasts the attorney’s employment. (People v. Singh (1932) 123 Cal.App. 365, 368.)

By making an objection and motion to quash the subpoena, an attorney is fulfilling her duty to claim her clients’ privileges. In addition, Evidence Code section 955 requires the attorney to claim the privilege.

As long as there is a holder of the privilege in existence at the time disclosure is sought, the attorney has a duty to exercise the attorney-client privilege unless the holder of the privilege instructs him not to do so.

Client confidences are presumed privileged and California Evidence Code section 917 requires the person seeking the information to prove there is no privilege. In other words, the party seeking the records must overcome the presumption that the records are confidential.

When the court is asked to rule on a claim of privilege, the disclosure of the information claimed to be privileged is not required. The court can simply conduct a closed hearing. (Cal. Evid. Code sec. 915, subd. (a)(b).)

At all times, an attorney should actively seek to protect client confidences and prevent the disclosure of privileged material.

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