Can I Really Tell You Everything? California Attorney/Client Privilege
Most of us are familiar with the attorney–client privilege in terms of protections provided in criminal cases and prosecutions. But what about its application to civil and business related matters? Through television and movies, most of us have learned that if you tell your lawyer all your dirty deeds he or she can’t tell anyone about it. This is true for the most part, as set out in California Evidence Code 954, as well as case law and standards established by federal, state courts and the American Bar Association. Confidential communications between clients and their attorney are generally privileged. However, like most rules, there are exceptions. Two more common exceptions are: 1) you convey an intent to do future harm (not your past bad deeds or crimes); or, 2) matters of fraud.
Matters of FraudIt’s this second exception that comes into play most often when entering the civil law forum. If you convey to your attorney an intent to commit, and in fact do so commit, a fraud upon the court, through submission of false testimony or false documents, your privilege may not protect you. Using this exception, courts can order an attorney to reveal otherwise privileged or confidential information in circumstances relating to major crimes and fraud. In addition, this exception requires an attorney to disclose information to a court if a client reveals that he or she is planning to carry out a crime or fraud, or is in the process of doing so. However, an attorney is not required to reveal whether a past crime has been committed.
For example, if you or your business is involved in a civil suit regarding allegations of stolen funds, the judge can order your counsel to turn over documentation of conversations between the two of you which involve plans or methods to commit acts for the purpose of misappropriating funds. See United States v. Zolin, 491 U.S. 554 (1989); See also Geilim v. Superior Court, 234 Cal. App. 3d 166, 285 Cal. Rptr. 602 (1991).
Attorney/Client RelationshipIn order for the privilege to be in effect, and your communications to be protected, there must exist a valid attorney-client relationship. Money does not necessarily need to exchange hands. However, it is typically advisable to withhold details and information from an attorney until they confirm in writing that the privilege applies, as this constitutes nearly irrefutable evidence that the parties intended to and did enter into an attorney-client relationship. Any information given for the purposes of retaining an attorney, for example, during consultation, is typically considered privileged, but should there be a dispute about whether such a relationship was formed, written evidence is usually the best evidence. And of course, information gained during the course of representation is protected by the privilege, absent one of the narrow exceptions; this includes verbal communications as well as documents shared with your attorney and documents prepared during the course of or in furtherance of representation.
Work-ProductAttorney work product privilege, as provided in the California Code of Civil Procedure, acts for the purpose of allowing attorneys to:
“…prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases” (CCP 2018.020(a)); and,
“prevent attorneys from taking undue advantage of their adversary’s industry and efforts” (CCP 2018.020(b)).
Writings that reflect an attorney’s “impressions, conclusion, opinions, or legal research or theories” (CCP 2018.030(a)) are also not discoverable, or, in other words, are “protected”. All other material considered to be work product can become discoverable if a court determines that the party seeking the information or documents will be unfairly prejudiced without such disclosure (CCP 2018.030(b)).
Privilege LogYour attorney can create a “privilege log,” either in anticipation of requests by outside parties for discovery, or simply as a proactive measure to ensure protection of communications and documents you would like to ensure are privileged. Entire documents and other documentations of communications can be listed and then designated as privileged, and the reasons for the privilege given for each item. Documents otherwise discoverable can be redacted for sensitive information and those redactions may be noted with the corresponding privilege and reasons for the privilege clearly stated.
Waiver of Privilege by the ClientA client can intentionally waive the privilege and allow confidential information to be released by their attorney. More often than not, however, the privilege is waived unintentionally by the client or in a careless way. For example, having third parties present during communications with your attorney can waive the privilege. Speaking publicly or releasing information over social media can also waive the privilege. Similarly, having a conversation with another person which could reasonably be heard by a third party does not create a privilege between you and that third party, so it is important to remember that the privilege does not apply to third parties. Rather, the attorney-client privilege is only between you and your counsel.
Duty of ConfidentialityClients are afforded an extra layer of protection in addition to the attorney-client privilege under the Duty of Confidentiality, as proscribed by the Code of Ethics and ABA standards. This means that a lawyer must keep their clients’ confidences and “secrets” even after representation ends or after the death of their client. As determined by the various state bar rule making authorities, it is in the best interest of the system as a whole that a client feel comfortable and willing to be honest with their attorney.
ConclusionOverall, there exists a very broad blanket of security for communications between a client and their attorney, and the exceptions are typically interpreted quite narrowly. However, because there are some exceptions, it is important to ask your attorney if you have any concerns of confidentiality during consultation, and work with your attorney to make sure important communications and documents remain protected and secure.