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Basics of the California Attorney-Client Privilege (Part II)

As discussed in Part I of this series, the attorney-client privilege shields and protects from disclosure confidential communications between an attorney and his or her client. Every San Diego business needs a trusted and skilled business attorney. In this Part II, we will explore factual matters that are not subject to the privilege.

California Business Law: Reasons for the Attorney-Client Privilege

The attorney-client privilege began as a protection for those accused of crimes. The idea was simple: Justice and fairness would be destroyed if a lawyer was forced to testify against his or her own client. If the criminal system was a function with any sort of justice, the accused had to have at least one “friend” in the world. But that “friend” — his or her lawyer — had to be trusted and trust could only be established if the lawyer could not be compelled to divulge confidential communications.

Since then, the privilege is also now justified as making it possible for lawyers to do their jobs — protecting their clients’ interests in both criminal and civil matters. Moreover, and very important to our modern competitive marketplace, the privilege has evolved to prevent a lawyer from disclosing information to third-parties and competitors. This protects trade secrets and other confidential business information.

California Business Law: Not All Information is Protected by Attorney-Client Privilege

The attorney-client privilege protects communications about legal matters. As we said in Part I, in general, if you and your lawyer are talking about the weather, such will not be cloaked in the privilege. As a practical matter, the information not protected by the privilege includes:

  • Communications without the existence of the attorney-client relationship
  • The fact that the client communicated with the attorney
  • The length of the relationship
  • Dates on which the client communicated with the attorney
  • General nature of services performed — for example, oral communication, document preparation, etc.
  • Specific cases or proceedings for which services were performed
  • Fee arrangements — for example, how much was paid, how many hours worked, etc.
  • Any legal service agreement — some details might be redacted
  • And similar

In general, one may say that the outlines or contours of the attorney-client relationship can be known, but the contents of the relationship cannot.

California Business Law: Disclosure to Third Parties Nullifies Attorney-Client Privilege

It is important to note that the attorney-client privilege only protects confidential communications with a lawyer. If the communication is made in public or in front a several people or even one extra person, then the communication was not confidential. Likewise, making the information public before or after the communications with your lawyer will nullify the attorney-client privilege.

California Business Law: Statutory Waiver of the Attorney-Client Privilege

As noted in Part I, the attorney-client privilege can be waived by the client, and only by the client. However, the California legislature and many other jurisdictions have created a statutory or legally-required waiver of the privilege where a dispute arises between the client and the lawyer over the relationship itself. The two most common circumstances are where the client sues the lawyer for malpractice and where the lawyer sues the client to recover unpaid legal fees. This is codified at Cal. Evid. Code § 958 which states: “There is no privilege under this article as to a communication relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.” See Evid. Code here.

Under these circumstances, the attorney is free to disclose as much privileged information as is necessary to defend or prosecute the legal claim.

California Business Law: Contact San Diego Corporate Law

If you would like more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard provides a full panoply of legal services for San Diego and California businesses. Mr. Leonard has been named a “Rising Star” three years running by and “Best of the Bar” by the San Diego Business Journal.  Mr. Leonard can be reached at (858) 483-9200 or via email.

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Schedule a Consultation: 858.483.9200