When a person needs to talk to a lawyer, he or she can take solace in knowing that the discussion with the lawyer will be protected by the attorney-client privilege. The attorney-client privilege offers protection from the very first meeting between the attorney and the prospective client. Since 1851, laws have recognized the attorney-client privilege, making it the oldest evidentiary privilege in California law.
Simply put, a client’s communication made in confidence to an attorney cannot be discovered by the opposing party or anyone in the world for that matter (except in a few instances discussed below). The reason for the privilege is clear: a client should feel free to tell his or her attorney everything and anything without fearing the information will be made public. In fact, even if the information is of vital importance, it will not be disclosed. An example of the broad-reaching effect of the privilege can be found in criminal law, where a criminal defendant’s lawyer cannot disclose to the prosecutor or the judge that his client admitted to the criminal act in confidence.
Even though some may argue that the privilege is too broad, in California the courts and the legislature have determined that the attorney-client privilege is warranted because the benefits derived from the privilege justify the risk that unjust decisions may sometimes result from the suppression of relevant evidence. (see Mitchell v. Sup. Ct. (1984) 37 Cal.3d 591, 599)
The law is clear that the actual content of the communications between the attorney and client are privileged and not subject to discovery (except in a few instances discussed below). However, the rules regarding the retention of an attorney are less clear. There are many reasons why the events and circumstances surrounding retention of an attorney might be considered relevant under the broad scope of discovery. For example, a client meeting with an attorney for the first time and who thereafter seeks medical treatment for his/her injuries might be discoverable to prove that the client only sought medical treatment because the attorney told him/her to as opposed to being truly injured. Conversely, if the circumstances surrounding the decision to retain an attorney are discoverable, such a rule could interfere with the attorney-client relationship and actually discourage a person form seeking the advice and counsel of an attorney.
To understand the exception, the client needs to know that the privilege applies “only to communications and not to facts.” Upjohn Co. v. U.S. (1981) 449 U.S. 383, 101 S.Ct. 677 (1981). Moreover, the privilege applies only to communications that are of a confidential in nature. California Evidence Code §§ 952, 954.
The privilege does not protect independent facts about the communication as opposed to the content thereof. For example, in some instances, the opposing party may be permitted to discover that the client spoke with his attorney, when and where the conversation happened and the names of all persons participating in the conversation. State Farm Fire And Casualty Co. v. Sup. Ct. (1997) 54 Cal.App.4th 625, 640. The “independent facts” generally make up the information necessary to establish the foundation to support application of the privilege in the first instance. The attorney-client privilege simply cannot be properly invoked to protect all communications where the client was present; the conversation needs to be confidential and not in the presence of others (except in the presence other lawyers in the office of the assistants or secretaries of the lawyer). “Transmission alone, even where the parties intend the matter to be confidential, cannot create the privilege if none, in fact, exists.” See Suezaki v. Sup. Ct. (1962) 58 Cal.2d 166, 176
While it may seem that any fact surrounding attorney retention merits protection from discovery to promote free and unfettered discussions between the attorney and client, the fact that the client met with the attorney is not protected provided there is some relevance between the meeting and the dispute between the parties.
All clients should also know that there are a few exceptions to the privilege, such as intent to commit a crime, fiduciary duty within a corporation, and the death of a client. Of course, if the client consents to the disclosure, then the statements are no longer confidential and may be disclosed.
The intended message of this article is to let prospective clients know that they can tell their attorneys everything knowing that the attorney cannot divulge that information without the client’s consent. If you need a lawyer, even if it is just to clear your head, understand your rights, or learn of the potential outcomes, you can rest assured that your conversations will remain confidential.
William E. Waddell is the principle of the Law Offices of William E. Waddell. He is a graduate of the University of the Pacific, McGeorge School of Law; where he was awarded the “Best Trial Advocate Award.” Mr. Waddell handles personal injury, employment law and other matters.
Email: firstname.lastname@example.org; Telephone.: (310) 318-6398
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