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Basics of the Attorney-Client Privilege in California (Part I)
Most of us think of lawyers as people who provide services. However, many forget that lawyers have legal and ethical obligations that prevent them from disclosing your confidential and secret information. This is called the attorney-client privilege. This is how you can call your attorney a “trusted” attorney. Any owner of a San Diego or California business must understand that this is a fundamental advantage of retaining skilled and experienced legal counsel. Cloaked in the attorney-client relationship, you may say what you want — may be upfront, open, frank, and at ease — with your business lawyer and those communications are almost entirely protected from being disclosed to any third party, including competitors, government agencies, and even law enforcement and judges.
To be clear, the attorney-client privilege is not just for criminal defendants. The privilege extends to all clients of all lawyers. In this four-part series, we provide some basic information on the attorney-client privilege. This Part I provides the basic information; Part II deals with what the privilege does NOT cover; Part III deals with exceptions to the privilege; and Part IV deals with how the privilege works for corporations.
California Business Law: Definition of Attorney-Client Privilege
In most jurisdictions, the attorney-client privilege is based on common-law. However, in California, the attorney client privilege has been reduced to statute. See Cal. Evid. Code, § 950 et. seq.
From the California Evidence Code and the relevant California caselaw, the attorney-client privilege can be defined as:
- Communications — orally, in writing, via email, etc.
- About the client’s legal matters — conversations about the weather are not covered by the privilege
- Between — communications are protected in both direction; TO and FROM the lawyer
- A “client” — this can be tricky sometimes
- And a “lawyer” — includes the lawyer’s subordinates
- And not made in the presence of third parties — one reason to be careful when “cc-ing” emails
- And not made for the purpose of committing a crime — this is the major exception to the privilege
- And not waived by the client — note that only the client can waive the privilege
California Business Law: The Attorney-Client Relationship and Privilege is Broad
As can be seen, there are many nuances here. Indeed, the attorney-client privilege has been recognized in Anglo-American law for centuries and has generated thousands of cases and books and manuscripts about the contours and limits of the privilege.
One of the more debated aspects is how broadly to define the attorney-client relationship. It goes without saying that there is no privilege if there is no attorney-client relationship. The questions involve who is the client; think about a corporation which is comprised of many natural persons? Who is the lawyer? When does the relationship begin; when does it end? Section § 950 of the Evidence Code defines “lawyer” to be “… a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation.” Section 951 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.”
Note how broad the definition is. Even if the person with whom the client is communicating is NOT a lawyer, the privilege will still apply if the client thinks he/she is communicating with a lawyer. Note also that there are no formalities required. The communications need not be in a conference room or pursuant to some specialized form. No payment is required. Many erroneously assume that you have to pay a lawyer to have the attorney-privilege begin. Such is not the case.
Finally, with respect to the question of when the privilege ends, the answer is — in general — never. Even if you end your relationship with one lawyer — or if the communication only takes a few minutes — the privilege itself will cloak and shield the communications indefinitely into the future. Under some circumstances, the privilege ends when the client becomes deceased.
California Business Law: Contact San Diego Corporate Law
If you would like more information about the attorney-client privilege in San Diego and California, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email.
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